Ohio Valley Environmental Coalition, Inc. et al v. Pruitt et al

Filing 32

MEMORANDUM OPINION AND ORDER denying 20 MOTION by West Virginia Coal Association to Intervene as a Defendant; granting WVCA amicus curiae status pursuant to the Court's order as more fully set forth herein. Signed by Judge Robert C. Chambers on 12/14/2015. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, INC.,
SIERRA CLUB,
WEST VIRGINIA HIGHLANDS
CONSERVANCY, INC. and
VIRGINIA RIVERS COALITION,
Plaintiffs,
v.

CIVIL ACTION NO. 3:15-0271

GINA MCCARTHY, Administrator,
United States Environmental Protection Agency and
SHAWN M. GARVIN, Regional Administrator,
United States Environmental Protection Agency,
Region III,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a Motion by West Virginia Coal Association (“WVCA”) to intervene as a
defendant in this administrative review action. ECF No. 20. In this case, the Ohio Valley
Environmental Coalition (“OVEC”) and others (collectively “Plaintiffs”) have challenged an
action of the United States Environmental Protection Agency (“EPA”). Specifically, Plaintiffs
challenge EPA’s approval of the West Virginia Department of Environmental Protection’s
(“WVDEP”) decision to not develop Total Maximum Daily Loads (“TMDLs”) for certain West
Virginia streams previously identified as “biologically impaired” due to “ionic stress.” Plaintiffs
seek an order that declares EPA’s approval in violation of law, and which requires EPA to develop
TMDLs for ionic toxicity for the identified streams. WVCA claims that its intervention in this case
is warranted as a matter of right under Federal Rule of Civil Procedure 24(a)(2), and alternatively,

permissibly under Rule 24(b). Plaintiffs oppose WVCA’s intervention in this case, and EPA takes
no position on intervention. For the reasons offered below, the Court DENIES WVCA’s Motion
to Intervene but GRANTS WVCA amicus curiae status in this action.
I.

Background

A. Clean Water Act
For the sake of deciding this motion, some background on the Clean Water Act (“CWA”)
is in order. The CWA is intended “to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters” and to attain “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a). The CWA prohibits anyone from
discharging pollutants from “point sources” into bodies of water unless the discharging entity does
so in compliance with a National Pollution Discharge Elimination System (“NPDES”) permit. 33
U.S.C. § 1311(a); 1342(a); 1362(12), (14). An NPDES permit grants the holder a right to discharge
pollutants in amounts below thresholds set in the permit. 33 U.S.C. § 1311(b), 1342(a); 40 C.F.R.
§ 122.1 et seq. The State of West Virginia, through the WVDEP, administers NPDES permits for
point sources within its jurisdiction. W. Va. Code § 22-11-4.
The CWA also requires each state to establish water quality standards consistent with the
CWA’s requirements for bodies of water within the state's boundaries. 33 U.S.C. § 1313(a)(3)(A),
(b), (c). These standards include water quality criteria, in narrative form, numeric, or both, which
define the amounts of pollutants that may be discharged into specific water bodies. 33 U.S.C. §
1313(c)(2)(A); 40 C.F.R. § 131.10–12. The water quality criteria are set so that specified water
bodies may maintain their designated beneficial uses. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§
130.2(d), 131.10–12. When existing pollution controls in a water body are not stringent enough to

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meet applicable water quality standards, that water body must be classified by the state as
“impaired.” 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7.
In Section 303(d), the CWA requires that states establish a list of impaired water bodies
within their boundaries. 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7. States must submit this “303(d)
list” to EPA every two years for approval, and within 30 days of the submission, EPA must
approve, disapprove, or partially disapprove the state's 303(d) list. 33 U.S.C. § 1313(d)(2); 40
C.F.R. § 130.7(d)(2). If EPA disapproves a state's 303(d) list, EPA must establish a list of waters
that should have been included in the state’s list, and it must populate this corrected list within 30
days of the date of disapproval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). In populating its
list, EPA must solicit and consider public comment on what waters should have been labeled
impaired. 40 C.F.R. § 130.7(d)(2).
For water bodies classified impaired in a state’s 303(d) list, the state must establish a total
maximum daily load (“TMDL”) for any pollutant “preventing or expected to prevent attainment
of water quality standards.” 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1)(ii). A TMDL sets
the maximum amount of a pollutant that may be discharged into an impaired water body from all
point sources combined without exceeding water quality standards. See 40 C.F.R. § 130.2(i)
(stating a TMDL is “[t]he sum of the individual [waste load allocations or “WLAs”] for point
sources and [load allocations or “LAs”] for nonpoint sources and natural background”); see also
Ctr. For Biological Diversity v. EPA, No. 13-1866, 2014 WL 636829, at *2 (W.D. Wash. Feb. 18,
2014) (citing Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995)). TMDLs
themselves do not regulate specific sources of pollutants, as in how much of a pollutant an
individual may discharge into a water body; but instead, TMDLs are used by states in designing
and implementing other pollution control measures, such as water quality management plans and

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the entire framework for granting or denying NPDES permits. See 33 U.S.C. § 1313(e) (describing
continuing planning process in which states must engage); 40 C.F.R. § 130.6 (water quality
management plans), 130.7 (explaining process for “incorporating the approved [TMDLs] into the
State's water quality management plans and NPDES permits”); see also Ctr. For Biological
Diversity, 2014 WL 636829, at *2 (citing Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.
2002).
After being calculated, the state’s TMDLs must be subject to public review. 40 C.F.R. §
130.7(c)(1)(ii). Following public review, the state must submit its TMDLs to EPA for review, and
EPA must either approve or disapprove the submission. 33 U.S.C. § 1313(d)(2). If the state fails
to establish a TMDL deemed necessary by EPA, EPA must calculate that TMDL, seek public
comment on EPA’s proposed TMDL, consider the comments received, and submit EPA’s final
TMDL to the state for incorporation into the state’s water quality management plan. 40 C.F.R. §
130.7(d)(2).
Based on the TMDL for a given water body, the state determines WLAs for that water
body, which establishes the maximum amount of a designated pollutant that a specific entity may
discharge through a point source into that water body. 40 C.F.R. § 130.2(h) (WLA is “[t]he portion
of a receiving water’s loading capacity that is allocated to one of its existing or future point sources
of pollution. WLAs constitute a type of water quality-based effluent limitation.”). Thus, a WLA is
a type of effluent limitation placed on specific discharging entities, and it is imposed by the
WVDEP through the NPDES permit. W. Va. Code § 22-11-4(a)(1); W. Va. Code R. § 47-10-3.1,
3.4.

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B. WVCA’s allegations1
WVCA is a trade association that represents coal producers and ancillary businesses.
Memo. of Law in Supp. of Mot. to Intervene 2, ECF No. 21 [Hereinafter WVCA’s Memo. in Supp.].
WVCA represents West Virginia’s coal industry, as well as the thousands of individuals who mine
and depend on coal in West Virginia, the nation’s second largest coal producing state. Id. A number
of WVCA members conduct mining operations in West Virginia and hold NPDES permits for
water discharges from those operations. Id. The NPDES permits allow WVCA permit holders to
discharge pollutants from point sources into specific West Virginia water bodies. Id
In the years 2009, 2012, and 2014, WVDEP submitted for EPA’s approval TMDLs set for
streams in certain regions of West Virginia. See Compl. ¶¶ 2, 64, 65. WVDEP’s submissions for
those years did not include any TMDL for water bodies that, according to Plaintiffs, are impaired
by “ionic stress.” Compl. ¶ 3. This omission was due to the fact that WVDEP has never before
instituted a TMDL for ionic stress, and EPA has never required WVDEP to do so. Compl. ¶ 5;
WVCA’s Memo. in Supp. 2. WVDEP has refused to develop TMDLs for ionic stress on the ground
that “[t]here is insufficient information available regarding the causative pollutants and their
associated impairment thresholds for biological TMDL development for ionic toxicity at this
time.” Compl. ¶ 28.
According to Plaintiffs, ionic stress occurs when certain pollutants are discharged into
water bodies. WVDEP determined that “ionic toxicity is a significant stressor,” and “a strong
presence of sulfates and other dissolved solids exists in those waters where ionic toxicity has been
determined to be a significant biological stressor.” Compl. ¶ 30. Plaintiffs allege that water bodies

1

For the sake of deciding this motion, the Court accepts as true the following facts alleged by
WVCA.
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in West Virginia’s submission to EPA have been identified by WVDEP as biologically impaired
due to ionic stress. Compl. ¶ 27, 35; see also ¶¶ 41, 45, 57. But the information about ionic stress’s
causative pollutants is limited, and thus, according to WVDEP, appropriate thresholds related to
ionic stress are also undefined at this time. Compl. ¶ 30. Regardless of this limited information,
Plaintiffs assert the CWA requires that WVDEP develop TMDLs even in the face of a “lack of
knowledge.” Compl. ¶ 20, 85, 89, 93, 97, 101, 106.
In bringing this action, Plaintiffs seek an order that (1) declares EPA’s approval of
WVDEP’s decision to not establish ionic stress TMDLs in violation of a nondiscretionary duty
that EPA has, specifically a duty to establish TMDLs for ionic stress in light of WVDEP’s failure
to do so, and (2) requires EPA to develop TMDLs for ionic stress for the identified streams.
WVCA claims the imposition of TMDLs sought in this action will necessarily result in
effluent limits being placed on WVCA members NPDES permits, and these effluent limits would
necessarily have a significant and pervasive effect on WVCA members’ businesses interests.
WVCA’s Memo. in Supp. 1–2. Specifically, WVCA believes TMDLs for ionic stress would
necessarily lead to WVDEP’s placing effluent limits on WVCA member NPDES permits, and
these limits would, in turn, necessarily diminish the value of coal reserves and property held by
WVCA members. Id. at 2. Additionally, these expected effluent limits would necessarily require
WVCA members to design and implement costly and complex water treatment technology in order
to comply with their NPDES permits. Id. Therefore, WVCA claims that if this Court grants
Plaintiffs the relief sought, the Court’s order would jeopardize WVCA members’ ability to
“maintain their businesses.” Id.

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II.

Legal Standard

“[L]iberal intervention is desirable to dispose of as much of a controversy ‘involving as
many apparently concerned persons as is compatible with efficiency and due process.’” Feller v.
Brock, 802 F.2d 722, 729 (4th Cir. 1986) (citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir.
1967)). Liberality does not, however, entail resolving every possible doubt in favor of intervention,
and Federal Rule of Civil Procedure 24 sets standards for intervention that must be observed and
applied thoughtfully by courts. 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1904 (3d ed.), Westlaw (database updated April 2015).
Rule 24 provides two avenues for non-parties to timely intervene in an ongoing suit. Fed.
R. Civ. P. 24. Under Rule 24(a)(2), a non-party may intervene as a matter of right if it can
demonstrate “an interest in the subject matter of the action; [] that the protection of this interest
would be impaired because of the action; and [] that the applicant's interest is not adequately
represented by existing parties to the litigation.” Stuart v. Huff, 706 F.3d 345, 349 (4th Cir. 2013)
(quoting Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991)). When intervention of right is
not warranted, a court may nevertheless grant permissive intervention under Rule 24(b) if the nonparty has a claim or defense that shares a common question of law or fact with the main action.
Fed. R. Civ. P. 24(b).
III.

Discussion

WVCA argues that it fulfills the criteria to intervene under both 24(a)(2) and (b). Plaintiffs
oppose intervention on both grounds, and EPA has not indicated whether it opposes or supports
WVCA’s intervention. After applying 24(a)(2) and (b) below, the Court concludes that WVCA’s
intervention in this case is not warranted. First, the Court deals with whether WVCA has a right to

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intervene under 24(a)(2). Then, the Court turns to whether it may permit WVCA to intervene
permissively under 24(b). Lastly, the Court considers granting WVCA amicus status in this action.
A. Intervention of right under 24(a)(2)
WVCA argues it should be granted intervention under Rule 24(a)(2) because it has satisfied
all requirements for intervention of right. Federal Rule of Civil Procedure 24(a)(2) entitles a nonparty to intervene as a matter of right if:
the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest, unless the
applicant's interest is adequately represented by existing parties.
Fed. R. Civ. P. 24(a)(2). The Fourth Circuit has held 24(a)(2) requires: (1) a timely motion to
intervene; (2) the applicant has an interest in the subject matter of the action; (3) the protection of
this interest would be impaired because of the action; and (4) the applicant's interest is not
adequately represented by existing parties to the litigation. Alt v. EPA, 758 F.3d 588, 591 (4th Cir.
2014) (motion to intervene must be timely in order to be granted); Stuart, 706 F.3d at 349; Teague,
931 F.2d at 261 (citing Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)).
Based on the analysis below, this Court concludes that, although WVCA’s motion is
timely, WVCA members do not have a significantly protectable interest in this litigation; the
members’ ability to protect their purported interest will not be impaired by disposition of this
action; and WVCA has not met its burden to show an existing party—EPA, a government entity—
does not represent the interest WVCA claims to have in this litigation. For these reasons, the Court
concludes that WVCA does not have a right to intervene under 24(a)(2).
1. Timely Motion to Intervene
WVCA contends its Motion to Intervene is timely brought. The Court agrees. In
determining whether a motion to intervene is timely, district courts have wide discretion and must
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consider, at a minimum: (1) how far the suit has progressed prior to the motion; (2) the prejudice
which delay might cause other parties; and (3) the reason for any tardiness in moving to intervene.
Alt, 758 F.3d at 591; Gould v. Alleco, Inc., 883 F.2d 281, 285 (4th Cir. 1989) (citing NAACP v.
New York, 413 U.S. 345, 365–66 (1973). Ultimately, the purpose of the timeliness requirement is
to prevent a tardy non-party from derailing a lawsuit within sight of its terminus. Scardelletti v.
Debarr, 265 F.3d 195, 202 (4th Cir. 2001), rev'd on other grounds, Devlin v. Scardelletti, 536 U.S.
1 (2002).
In this case, WVCA’s Motion to Intervene is timely brought. First, other than filing the
Complaint, Amended Complaint, and Answer, no other action had taken place in this case before
WVCA filed its motion to intervene. No other person or entity moved to intervene prior to
WVCA’s motion. To this date, the Court has yet to issue a scheduling order, and discovery has not
commenced; no formal settlement negotiations have taken place; and no motion to dismiss has
been decided. Hence, prior to WVCA’s Motion to Intervene, the suit had not progressed beyond
the pleadings, and it certainly had not reached an “advanced stage,” see Alt, 758 F.3d at 591.
Second, because the proceeding is in its infancy, no existing party has been prejudiced by the time
it took for WVCA to file its motion to intervene. WVCA, having brought its motion approximately
four months after the Complaint was filed, see Compl., ECF No. 1; Mot. By W. Va. Coal Assoc.
to Intervene as Def., ECF No. 20, did not deliberately forebear filing its motion. Because the suit
was in its infancy when WVCA filed its motion to intervene, and because the existing parties were
not prejudiced in any way by the time it took for WVCA to file its motion to intervene, the Court
finds WCA’s Motion to Intervene is timely brought under Rule 24.

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2. Significantly Protectable Interest in the Subject Matter of this Litigation
WVCA argues its members have significantly protectable interests in the subject matter of
this administrative review action. This Court concludes otherwise below. In the following
paragraphs, the Court will explain the sort of interest Rule 24(a)(2) contemplates, consider whether
WVCA’s interest could constitute such an interest, and then decide whether WVCA has a
contingent economic interest under the Fourth Circuit’s previous decisions.
To have a right to intervene under Rule 24(a)(2), a would-be intervenor must have “an
interest relating to the property or transaction which is the subject of the action.” Fed. R. Civ. P.
24(a)(2). 2 While the Rule itself does not specify the nature of the “interest” required for
intervention of right, the Supreme Court has clarified that 24(a)(2) requires a “significantly
protectable interest.” Donaldson v. United States, 400 U.S. 517, 531 (1971).
The Fourth Circuit has not iterated a single standard for determining whether an interest is
significantly protectable, although it has provided guidance. An applicant has a significantly
protectable interest in an action if it “stand[s] to gain or lose by the direct legal operation” of a
judgment in that action. Teague, 931 F.2d at 261. And “an interest [in an action that is] contingent
upon the outcome of other pending litigation constitutes a ‘significantly protectable interest,’” even
though the interest may be destroyed by the result of that other litigation. See Morgantown Energy
Assoc.s v. Pub. Serv. Comm'n of W. Va., No. 12- 6327, 2013 WL 140235, at *3 (S.D.W. Va. Jan.
10, 2013) (citing Teague, 931 F.2d at 261). Standing to gain or lose by direct operation of a
judgment may not be a necessary condition for an interest to be significantly protectable, i.e., there
may be interests more remote that are nonetheless protectable under 24(a)(2), but this standard

Associations may intervene to assert their members’ interest. See, e.g., Sierra Club v. Hazardous
Waste Treatment Council, 945 F.2d 776 (4th Cir. 1991).
2

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provides guidance for determining whether an applicant has a significantly protectable interest in
a given action.
The Advisory Committee Notes elucidate further the Committee’s intended meaning of
“interest” in Rule 24. The Note states, “an applicant is entitled to intervene in an action when his
[or her] position is comparable to that of a person under 19(a)(2)(i).” Fed. R. Civ. P. 24, advisory
committee’s note to 1966 amendment. Looking to the 1966 version of Rule 19(a)(2)(i), that section
provided, “a person . . . shall be joined as a party . . . if . . . he claims an interest relating to the
subject of the action and is so situated that disposition of the action in his absence may impair or
impede his ability to protect that interest.” Fed. R. Civ. P 19(a)(2)(ii) (1966). Thus, the Advisory
Committee intended for courts to use criteria for joinder of necessary parties in deciding whether
a party has a significantly protectable interest in pending litigation. This suggests that an applicant
should be permitted intervention as of right under 24(a)(2) only in those situations when the
applicant would be a necessary party under today’s Rule 19(a)(1)(B)(i).3
WVCA asserts it has a significantly protectable interest in this litigation because TMDLs
developed as result of this litigation “would have a significant and pervasive effect on WVCA
members’ businesses.” Memo. in Supp. 4. WVCA’s rationale begins by noting that Plaintiffs seek
a ruling requiring EPA to promulgate TMDLs for “ionic toxicity,” which would be imposed on
streams in West Virginia identified as “biologically impaired.” WVCA speculates that imposition

3

The Fourth Circuit has indicated that Rule 19(a)(1)(B)(i) directs courts to consider the non-joined
party’s ability to protect its interests if not joined to the litigation in which the non-party asserts an
interest. Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 434 (4th Cir. 2014); see also Ohio
Valley Envtl. Coal., Inc. v. Maple Coal Co., 808 F. Supp. 2d 868, 889 (S.D.W. Va. 2011); Ohio
Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 723 F. Supp. 2d 886, 915 (S.D.W. Va. 2010). Since
that analysis takes place under another prong of 24(a)(2), the Court does not consider under this
prong WVCA’s ability to protect its members’ interests outside of this litigation. See infra, Part
III.A.3.
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of these TMDLs will certainly result in effluent limits for conductivity, and furthermore, these
effluent limits will be placed on NPDES permits held by some of WVCA’s members. Conductivity
effluent limits placed on WVCA member permits will in turn, according to WVCA, necessarily
(1) diminish the value of coal reserves and property held by WVCA members, and (2) require
members to design and implement costly water treatment technology in order to comply with the
effluent limits. Thus, the business interests that WVCA claims to have in this action are interests
in the value of property and coal reserves, and an interest in avoiding costly water treatment
procedures that might be required by effluent limits. In sum, WVCA asserts that as a result of a
ruling favorable to Plaintiffs, its members will certainly be subject to stricter regulations and
thereby suffer reduced property values and increased costs of chemical treatment. On this basis,
WVCA claims it has a significantly protectable interest in avoiding an order requiring
promulgation of TMDLs.
Plaintiffs oppose intervention by WVCA and point out that WVCA’s asserted interest is
nearly identical to the interests rejected as insufficient by the United States District Court for the
Western District of Washington in Center for Biological Diversity v. EPA, No. 13-1866, 2014 WL
636829 (W.D. Wash. Feb. 18, 2014). In Center for Biological Diversity, the plaintiff brought an
action against EPA seeking a declaration that EPA’s approvals of Section 303(d) lists submitted
by Oregon and Washington were unlawful. For relief, the plaintiff sought an order compelling
EPA to identify additional waters to be placed on Washington and Oregon’s lists. Id. at *2. Two
industry groups attempted to intervene, asserting that if the plaintiff were to prevail, some of their
members would face stricter or additional regulation and would likely incur significant increased
capital and operating costs necessary to comply with these new regulatory requirements. Id. at *3.

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The Washington district court in Center for Biological Diversity decided the industry
groups’ claimed interest relating to TMDLs was too attenuated to be significantly protectable
under Rule 24(a)(2). Id. at *4. The court rejected the industry groups’ claim that new TMDLs
would necessarily result in stricter regulations in their members’ permits, observing that:
[a] TMDL does not, by itself, prohibit any conduct or require any
actions. Instead, each TMDL represents a goal that may be
implemented by adjusting pollutant discharge requirements in
individual NPDES permits or establishing nonpoint source controls.
. . Although NPDES permits must, as a whole, contain limitations
that are consistent with the wasteload allocations established in
TMDLs, the state retains discretion in determining how the pollutant
load is allocated among the various sources . . .
Id. (internal quotations and citations omitted). Consequently, the court concluded that too many
steps—“steps that involve nebulous ‘goals’ and the discretion of two public agencies”—lie
between a possible order requiring additional TMDLs and any potential new restrictions in permits
for the would-be intervenors’ interests to be direct enough to constitute a significantly protectable
interest. Id.
The court in Center for Biological Diversity went on to rule that the mere possibility that
a suit could lead to more stringent regulations imposed on NPDES permits does not constitute an
interest sufficient to warrant a right to intervene. Id. at 5. At best, a permit holder might have a
remote economic interest in the litigation, one shared by every entity that possesses a permit to
discharge into water bodies in the subject state. Id. The court agreed with other courts that, “an
undifferentiated, generalized interest in the outcome of an ongoing action is too porous a
foundation on which to premise intervention as of right.” Id. at 6 (citing S. California Edison Co.
v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) modified by, 307 F.3d 943 (9th Cir. 2002); ManaSota–
88, Inc. v. Tidwell, 896 F.2d 1318, 1322 (11th Cir. 1990)).

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Center for Biological Diversity also considered and rejected an argument that reversing
EPA’s decision would adversely affect permit holders’ real property values. Id. at 7. The industry
groups provided no explanation for their diminished property value theory other than alleging that
a ruling reversing EPA’s decision would adversely affect their property values. Id. The court
rejected the industry groups’ argument that they had sufficient interests in the litigation stemming
from expected diminished property values. Id First, the court noted the suit was not one where an
adverse ruling would impair or restrict the use of any permit holder’s real property, then it found
the groups failed to allege how the suit could negatively affect permit holders’ property. Id.
This Court finds Center for Biological Diversity instructive and its reasoning persuasive.
Relief for Plaintiffs in this case would not necessarily directly or indirectly affect any interest held
by WVCA members. 4 If Plaintiffs receive a favorable ruling, whether permit revisions are
required at all is a decision that will be made at the discretion of federal and state agencies after
several steps of administrative processes subject to public comment or review. For instance,
assume Plaintiffs get the relief they seek—an order requiring EPA to develop TMDLs for ionic
toxicity for certain West Virginia streams. In that event, the Court’s order would only mandate
that EPA begin the administrative process of promulgating TMDLs for conductivity.5 After EPA

4

The Court notes that having an existing NPDES permit at stake in an action can confer a
significantly protectable interest in that suit. See Sierra Club v. EPA, 995 F.2d 1478, 1486 (9th
Cir. 1993), abrogated on other grounds by, Wilderness Soc., 630 F.3d 1173. However, this case
does not directly challenge or directly affect any existing permit held by WVCA members, nor
would its disposition for or against Plaintiffs necessarily change conditions imposed by WVDEP
in existing permits or permit applications.
5
EPA would promulgate TMDLs by informal rulemaking, see 5 U.S.C. § 553(c) (mandating
formal rulemaking procedures if statute requires rulemaking after hearing on record); 33 U.S.C. §
1313(d)(2) (not requiring rulemaking or adjudication after hearing on record, i.e., formal
rulemaking or adjudication), and WVCA members would be entitled to at least participate in notice
and comment procedures required by EPA’s regulations, see 40 C.F.R. 130.7(d)(2) (“Regional
Administrator shall promptly issue a public notice seeking comment on such listing and
loadings.”).
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promulgates TMDLs, WVDEP would then be tasked with deciding whether the TMDLs
necessitate effluent limits on affected streams in West Virginia.6 On one hand, it is possible that
TMDLs crafted by EPA will require effluent limits, but at this stage, it is just as possible that
TMDLs would not necessitate any effluent limits. If effluent limits are required, WVDEP would
undergo the administrative process of deciding how to revise existing permits, if that is necessary
at all, and how to impose new effluent limits on new permit applications.7 In deciding how to
impose effluent limits for each stream, WVDEP will decide how to spread effluent limits across
multiple point sources discharging into the same water body.8 Thus, at a glance, this Court cannot
even begin to speculate on several matters that are pertinent to whether this Court’s ruling will
have any effect at all down the road on WVCA members’ permits, much less their property values
and treatment obligations. 9 These unanswered questions are wholly outside the scope of this
litigation, making WVCA’s interests well outside the scope as well. Because WVCA members’

See 33 U.S.C. § 1313(d)(2) (“If the Administrator disapproves [state submitted TMDLs], [the
administrator] shall . . . establish such loads for such waters . . . and upon such . . . establishment
the State shall incorporate them into its current plan under subsection (e) of [§ 1313]”); 33 U.S.C.
§ 1313(e) (plans for navigable waters include effluent limitations); see also 40 C.F.R. § 130.5.
7
See W. Va. Code § 22-11-6 (“water quality standards themselves shall not be considered
‘effluent standards or limitation’ . . . and shall not be independently or directly enforced or
implemented except through the development of terms and conditions of a permit issued pursuant
to this article”).
8
See 33 U.S.C. § 1342(b) (state permit programs must issue permits in compliance with effluent
limitations standards set forth at 33 U.S.C. § 1311); 40 C.F.R. § 130.2(h) (providing that WLA, a
type of effluent limitation, is the portion of a TMDL allocated to a point source); W. Va. Code §
22-11-11 (stating permits will be issued if applicant seeking permit will not violate any effluent
limits); see generally 40 C.F.R. § 130.5 (state’s continuing planning process requires development
of TMDLs, effluent limits, and establishing priorities for NPDES permit issuance).
9
For instance, if TMDLs must be developed, what will their content be? Will TMDLs crafted as
result of this case necessitate any effluent limits for any West Virginia streams at all? If so, what
will be the substance of those effluent limits? How will WVDEP decide to impose effluent limits
in existing permits or permit applications? And the greatest question is: Will WVDEP’s decision
to institute effluent limits have any effect at all on WVCA members’ property interests or treatment
obligations?
6

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predicted permit changes will occur, if at all, not until after multiple interim steps have been taken
by federal and state administrative agencies, a judgment for Plaintiffs would not necessarily affect
WVCA members’ NPDES permits, much less their property values, coal worth, or treatment
obligations. Thus, WVCA members will not gain or lose directly by the disposition of this case.
See Teague, 931 F.2d at 261.
Furthermore, cases denying motions to intervene in circumstances similar to WVCA’s are
legion; the Court will briefly consider the applicability of four such cases here. First, in Oregon
Environmental Council v. Oregon Department of Environmental Quality, 775 F.Supp. 353 (D.Or.
1991) the district court concluded that industries holding permits from the Oregon environmental
protection agency were not entitled to intervene as a matter of right in a lawsuit against the agency
alleging that it had issued the permits in violation of the Clean Air Act. The industries did not have
a significantly protectable interest, according to the court, because in suits “brought to require
compliance with federal statutes . . . , the governmental bodies charged with compliance can be
the only defendants.” Or. Envtl. Council, 775 F.Supp. at 358 (internal quotations and citations
omitted). In this case, EPA is the governmental body charged with complying with the CWA. The
subject matter of this action is an agency decision. WVCA does not have an interest in defending
an agency decision—EPA’s approval of a decision to not effectuate TMDLs—because that
decision is an agency matter, and the decision does not pertain specifically to WVCA members’
permits. Nor is the substantive content of TMDLS the subject of this lawsuit. WVCA members’
business interests in the content of TMDLs therefore do not relate directly to the transactions that
are the subject of this action, a federal agency’s decision approving the decision of a state agency.
See Our Children's Earth Found. v. EPA, No. 05-05184, 2006 WL 1305223, at *3 (N.D. Cal. May

-16-

11, 2006). Thus applying the reasoning of Oregon Environmental Council, WVCA cannot serve
as a defendant in an action where EPA is the defendant asserting its compliance with the CWA.
Second, the interest of the general business trade association held insufficient in United
States v. Metropolitan St. Louis Sewer District, 569 F.3d 829 (8th Cir. 2009) mirrors WVCA’s
interest in this action. In Metro. St. Louis Sewer District, a business trade association was not
entitled to intervene as of right in an enforcement action brought under the CWA by the United
States and the State of Missouri against an agency managing the City of St. Louis's sewer and
waste-water system. The Fifth Circuit ruled the association lacked a significantly protectable
interest because, although a ruling in the case could affect the association’s members' economic
interests, this interest was too tangential to the core issues of the enforcement case to establish the
association's right to intervene under Rule 24(a). Metro. St. Louis Sewer Dist., 569 F.3d at 839–
40. Here, WVCA asserts that a ruling in Plaintiffs’ favor in this administrative review action could
have an economic impact on their property, coal reserves, and water treatment obligations.
Looking to Metro St. Louis Sewer District for guidance, WVCA’s remote economic interest in this
administrative review case is tangential to the core issue of an enforcement action under the CWA.
Id.
Third, Upper Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 224 F.R.D. 694,
700 (N.D. Ga. 2004) rejected as insufficient an interest of taxpayers in a case under the CWA that
is very closely related to WVCA members’ interests in this action. In Upper Chattahoochee
Riverkeeper Fund, an association of taxpayers did not have a right to intervene in an action to
enforce the City of Atlanta's compliance with the CWA. The taxpayers alleged interests based on
the expected financial impact on them resulting from water improvement projects necessitated by
the consent decrees between the parties. The court held this interest was not significantly

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protectable. Although the members would be economically affected by the consent decrees, the
taxpayer’s interests, were “only peripherally related to the subject matter of the litigation.” Upper
Chattahoochee Riverkeeper Fund, 224 F.R.D. at 701. In this case, WVCA asserts that TWMDLs
could lead to effluent limits that could lead to NPDES permit revisions that could lead to an
economic impact on WVCA members’ businesses. This sort of interest in avoiding a far-off
possible economic impact is, applying the reasoning from Upper Chattahoochee Riverkeeper
Fund, a peripheral economic interest insufficient to constitute a significantly protectable interest
under 24(a)(2). Id.
Finally, Wildearth Guardians v. United States Forest Service, 573 F.3d 992 (10th Cir.
2009) clarifies what sort of economic interest is significantly protectable in an administrative
review action like this one, and WVCA members do not have such an interest in this litigation. In
Wildearth Guardians, a coal mine owner had an interest sufficient to intervene as of right in an
environmentalist organization's action challenging the U.S. Forest Service's (USFS) decision
approving the owner’s plans for expanding the mine and for venting methane gas from it. The
owner had a significantly protectable interest in the litigation challenging USFS’s decision
regarding his mine because the mine’s operations would be impaired, or even halted, if the
environmentalists obtained the relief they sought—a declaration that USFS’s approval violated
federal law and an injunction against expansion and venting. Wildearth Guardians, 573 F.3d at
995–96. In this case, Plaintiffs are not challenging EPA’s approval of plans submitted by any
WVCA member, an EPA decision regarding a WVCA member’s permit, or any EPA action that
otherwise bears directly or even closely on any WVCA member’s mine, property, or treatment
procedures. If Plaintiffs were challenging an EPA decision bearing directly on a WVCA member’s
permit, mine, property, or treatment procedures, most likely the mine owner, and maybe WVCA,

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would be entitled to intervene as of right. However, this case is different from Wildearth
Guardians; here, Plaintiffs challenge an EPA decision that may at some point in the distant future
tangentially affect some property, coal mines, or treatment processes of WVCA members. That
remote possibility of an interest affected by this Court’s decision is too speculative to find WVCA
has a significantly protectable interest in this litigation. See Ctr. for Biological Diversity, 2014 WL
636829, at *4; see also Teague, 931 F.2d at 261.
Next, the Court considers whether WVCA members have the sort of contingent economic
interest that the Fourth Circuit has previously held sufficient for intervention of right. WVCA
asserts that the Fourth Circuit has expressly recognized the sort of “contingent economic interests”
espoused by WVCA as sufficient to warrant intervention of right under 24(a)(2). WVCA supports
its proposition by citing JLS, Inc. v. Public Service Commission of West Virginia, 321 Fed. Appx.
286, 289-90 (4th Cir. 2009) (unpublished per curiam opinion) and Feller, 802 F.2d at 722.
Assuming the Fourth Circuit has recognized contingent economic interests as interests within the
meaning of 24(a)(2), see City of New Martinsville v. Pub. Serv. Comm. of W. Va., No. 12- 1809,
2012 WL 6694078, at *3 (S.D.W. Va. Dec. 21, 2012) (citing Teague, 931 F.2d at 259), WVCA’s
interests fall outside the scope of any contingent economic interest previously recognized by the
Fourth Circuit. Immediately below, the Court explains why it finds that WVCA’s interest in this
action is distinguishable from the contingent interests found sufficient in JLS, Feller, and Teague.
The interest the Fourth Circuit found sufficient in JLS is different from the interest asserted
by WVCA in this case because WVCA’s interest, unlike the interest in JLS, is contingent upon
several steps of multiple agencies’ decision making.10 The Fourth Circuit in JLS held that several

10

As an initial matter, this Court notes that JLS has little precedential value, since it is unpublished
and therefore is not binding authority to be applied in this case. Nonetheless, the Court will
consider the extent to which the interest found sufficient in JLS is comparable to any interest
-19-

passenger transportation companies, all in competition with the plaintiff passenger carrier
company, had an economic interest sufficient for intervention of right in a suit brought against a
state public service commission to declare the plaintiff exempt from state regulations of the
passenger carrier industry. JLS, 321 Fed. Appx. at 290. The Fourth Circuit held the companies had
a significantly protectable interest because the suit would determine the level of competition the
companies would face, and thereby, the amount of income they could expect to earn. Id. The
economic injury directly threatened by one possible outcome of the litigation gives rise to a
significantly protectable interest. See id. (citing Utahns for Better Transp. v. U.S. Dep't of Transp.,
295 F.3d 1111, 1115 (10th Cir. 2002)). In the instant case, any potential harm to WVCA members
is much more speculative and more remote than the possible harm in JLS. Unlike the prospect of
harm to WVCA members in this case, the harm threatened to the JLS intervenors was certain to
follow if the court entered judgment in favor of the plaintiff. The certainty of the economic harm
in JLS was guaranteed by sound principles of business: an increase in competition results in a
decrease in wages for the intervenors. All other things being equal, that is a proven-to-be-true
principle of business. There is no such certainty of harm to WVCA members’ business interests in
this case. A ruling for Plaintiffs in this case would only require EPA to take an action, which one
can only speculate as to whether that action will, after a series of decisions by EPA and WVDEP,
even have any effect at all on WVCA members. On this basis, the Court finds JLS distinguishable
from the present action.
For similar reasons, the interest the Fourth Circuit found sufficient in Feller is different
from the interest asserted by WVCA in this action. In Feller, the Fourth Circuit held that three
categories of domestic apple pickers had a significantly protectable interest in a suit brought by

WVCA members have in this case.
-20-

apple growers against the Department of Labor over its decision to deny certifications to the
growers. Feller, 802 F.2d at 729–30. The domestic pickers in the first group had a sufficient
economic interest in the litigation, the Fourth Circuit ruled, because if the action was decided in
the plaintiffs’ favor, the first group would have its wages directly affected by the court’s order. Id.
The second group had a sufficient economic interest because, as a result of a possible judgment
for the plaintiffs, they would lose wages due to increased competition that was certain to follow a
ruling in plaintiffs’ favor. Id. at 730. The third group had a sufficient interest, namely an interest
in preventing conflicting orders. Id. This case does not involve the sort of contingent economic
interest that Feller found sufficient for intervention of right. Any potential harm to WVCA
members is far more speculative and more remote than the harm threatened to the Feller
intervenors. Unlike the prospect of harm to WVCA members in this case, the economic harm
threatened to the first two groups of intervenors in Feller was certain to follow a judgment in the
plaintiffs’ favor. If the district court in Feller entered judgment for plaintiffs, and required DOL to
permit the growers to pay pickers at wages not set by DOL, the first group would have had their
wages directly affected by that order because their earnings were contingent upon the DOL-set
wage. Id at 729–30. The second group would have had their wages directly affected by the court’s
order because their wages were contingent upon foreign workers being either unavailable for work
or available only at a higher wage, which the court’s ultimate judgment would decide; notably, if
the court ruled in favor of the defendants, this necessarily would have resulted in a higher wage
for the intervenors. Id. Here, a ruling either way carries no certainty of harm or benefit to WVCA
members’ business interests. Granting Plaintiffs’ requested relief would only require EPA to take
an action—set TMDLs—which one can only speculate as to whether that action will, after a series

-21-

of decisions by EPA and WVDEP, even have any effect at all on WVCA members. For this reason,
the Court finds Feller distinguishable from this case.
Lastly, the contingent economic interest found sufficient for intervention in Teague is
distinguishable from the interests asserted by WVCA here. In Teague, the Fourth Circuit found
the intervenors had a significantly protectable interest in the outcome of a case where a plaintiffinsurance company sought a declaration that it was not liable to the intervenors under an insurance
policy for any claims asserted against it in a separate class action brought by the intervenors.
Teague, 931 F.2d at 261. In short, the Fourth Circuit ruled the plaintiff could not have its cake and
eat it too; the plaintiff could not seek a declaration finding it not liable to the intervenors, and then
argue the intervenors had an insufficient interest to oppose that declaration. Id. The Fourth Circuit
supported its holding by noting the intervenors stood to gain or lose directly from the district
court’s disposition of the coverage question placed before it by the plaintiff. See id. (“the Teague
Intervenors stand to gain or lose by the direct legal operation of the district court's judgment on
ERC's complaint”); see also id. (“If [the insurance company] prevails in this declaratory judgment
action, the [intervenors] would have to satisfy their judgment from other assets of the insureds and
the existence and amount of such assets are questionable.”).
Additionally, the Fourth Circuit in Teague noted the intervenors’ interest was subject to a
contingency, but nonetheless found the interest sufficient for intervention as of right. Id.
Specifically, the intervenor’s interest in the court’s declaratory judgment was contingent upon the
outcome of other pending litigation, namely the separate class action lawsuit brought by the
intervenors against the Teague plaintiff-insurance company. Id. If the intervenors were to lose that
other suit, they would have no interest in the declaration sought by the plaintiff in Teague. Id.
Thus, the contingency in Teague was that the intervenors had a merely provable, not-already-

-22-

decided claim in another suit. See id. The Fourth Circuit decided such a contingency does not
prevent proposed intervenors from having a significantly protectable interest in litigation that
could extinguish that merely provable claim. Id. Notably, the Fourth Circuit was not concerned
about the contingent nature of the intervenor’s interest, mostly because the intervenors would be
affected by a declaration from the court in Teague that the plaintiff had no obligation under the
policy to the intervenors. See id. at 261-62. Thus, based on Teague, where a would-be intervenor
asserts an interest in a suit, the interest may be significantly protectable even though it is contingent
upon the outcome of another pending case.
In this case, the contingency present is entirely different from the contingency in Teague.
Even if this Court orders EPA to develop TMDLs, there can be no certainty that TMDLs will have
any effect on WVCA member’s property values, their coal reserve worth, or treatment costs. It
will take several steps by administrative agencies—developing TMDLs, promulgating effluent
limits, applying those limits to new and existing permits—before the intervenor’s business
interests could be affected down the causal chain by this Court’s order. WVCA stretches the
contingency approved in Teague beyond its breaking point. Teague approved a one-step away
contingency—if the intervenors lost their class action lawsuit, they would have had no interest in
the Teague litigation. Nonetheless, WVCA asks this Court to find one contingency (content of
TMDLs that possibly requires effluent limits) based on a second contingency (content of effluent
limits that possibly affects permits) based on a third contingency (WVDEP’s possible decision to
apply effluent limits in a manner that affects WVCA member permits, existing or non-existent)
based on a fourth contingency (WVDEP’s decision affecting WVCA member permits could
possibly adversely affect the members’ property values, coal reserve worth, or water treatment

-23-

obligations) is a significantly protectable interest. The Court refuses to accept WVCA’s invitation
to dance the what-if.
Surely, nearly every decision of EPA related to water treatment could have some effect,
after several steps down the road, on WVCA members’ property values, coal reserve worth, or
treatment process obligations. But the Court cannot find a significantly protectable interest based
on that theory alone. There must be some limit to the contingencies that courts will accept for
purposes of finding an interest significantly protectable under 24(a)(2). Failure to place a limit on
the number of acceptable contingencies, accepting all contingencies in favor of intervenors, would
be tantamount to this Court’s approving intervention on the basis of the “Butterfly Effect.” See
Butterly Effect, WIKIPEDIA, https://en.wikipedia.org/wiki/Butterfly_effect (last visited Nov. 24,
2015) (“In chaos theory, the butterfly effect is sensitive dependence on initial conditions in which
a small change in one state of a deterministic nonlinear system can result in large differences in a
later state. The name of the effect . . . is derived from the [] example of the details of a hurricane
(exact time of formation, exact path taken) being influenced by minor perturbations such as the
flapping of the wings of a distant butterfly several weeks earlier.”). In ruling on motions for
intervention of right, courts could not function properly if they were required to find significantly
protectable interests based on multiple layers of contingency. This Court has no crystal ball. And
Teague neither equips courts with such, nor does it require courts to find interests are significantly
protectable when they are dependent upon multiple layers of contingency, such as WVCA
members’ purported interests in this case.11

11

Furthermore, the Court notes that finding WVCA has a significantly protectable interest in this
case would open the flood gates for WVCA’s intervention in almost any case challenging an EPA
decision pertaining to the CWA. If this Court were to find WVCA has a significantly protectable
interest in this action simply because the action has a remote possibility of affecting NPDES
permits held by WVCA members, the Court would be hard pressed to find any action reviewing
-24-

Lastly, WVCA claims, in support of its argument that it has a sufficient interest in this
litigation to warrant intervention of right, the Fourth Circuit has “specifically recognized the right
of WVCA to intervene in regulatory challenges involving the mining industry,” and it cites Bragg
v. West Virginia Coal Ass’n, 248 F.3d 275 (4th Cir. 2001) to support this proposition. After
reviewing Bragg, this Court finds no support for WVCA’s claimed blessing from the Fourth
Circuit. In Bragg, the Fourth Circuit never even considered whether WVCA’s intervention was
proper or not. Instead, WVCA was already a party to the suit when the suit was appealed to the
Fourth Circuit. WVCA’s intervention in that case was the product of the district court’s
unchallenged ruling granting WVCA’s motion to intervene. On appeal, the Fourth Circuit was not
asked whether the district court properly permitted WVCA to intervene, instead the court of
appeals was deciding whether the district court properly granted summary judgment in plaintiffs’
favor. To claim that Bragg grants WVCA an ongoing right to intervene in regulatory challenges
involving the coal mining industry is at best an improper reading of Bragg, and at worst, a
disingenuous statement of the rule from Bragg. Whatever effect WVCA’s intervention had in
Bragg, intervention mattered not to the Fourth Circuit’s ruling in that case, and therefore, Bragg
does not support WVCA’s motion to intervene in this case.
For the above reasons, the Court finds that WVCA does not have a significantly protectable
interest in this administrative review action sufficient to warrant a right to intervene in it under
24(a)(2). There simply are too many steps—“steps that involve nebulous goals and the discretion
of two public agencies”—between a potential judgment in Plaintiffs’ favor and any possible

an EPA decision related to the CWA where WVCA would not have a significantly protectable
interest. In light of such a ruling, WVCA could gain intervention of right in any case where
reversing EPA’s decision could result in a later decision of EPA or WVDEP that is adverse to
WVCA’s business interests, no matter how remote the possibility of a later adverse action.
-25-

adverse consequence to WVCA members’ interests in property, coal reserves, or water treatment
costs to find that WVCA has a significantly protectable interest in this litigation. Ctr. for Biological
Diversity, 2014 WL 636829, at *4; see also Teague, 931 F.2d at 261. Although this finding is
dispositive, in the next section the Court assume WVCA has a significantly protectable interest in
order to determine whether disposition of this action would impair WVCA’s purported interest.
3. Impairment of ability to protect interest
Next, WVCA contends that disposition of this action without it would impair or impede
WVCA’s ability to protect business interests its members allegedly have in this litigation. The
Court disagrees, and concludes below that any interest WVCA members have in avoiding new
restrictions imposed on their NPDES permits would not, as a practical matter, be impaired by
denying WVCA intervention in this case.
If an interest sufficient to satisfy Rule 24(a)(2) is presented, a court must then ask if the
would-be intervenor “is so situated that disposing of the action may as a practical matter impair or
impede the [applicant’s] ability to protect its interest.” Fed. R. Civ. P. 24(a)(2). The question
presented by 24(a)(2)’s impairment prong requires a practical analysis, rather than a legal one.
Wright & Miller supra, at § 1908.2. The impairment prong is satisfied where: (1) disposition of
the action would put the movant at a “practical disadvantage” in protecting its interest, or (2) the
stare decisis effect of a judgment would legally preclude the would-be intervenor from protecting
its interest later. Francis v. Chamber of Commerce of U. S., 481 F.2d 192, 195 n.8 (4th Cir. 1973)
(stare decisis is sufficient to satisfy impairment prong); Wright & Miller supra, at § 1908.2. The
practical disadvantage of filing a separate suit and perhaps duplicating efforts is not sufficient to
satisfy the impairment prong. Francis, 481 F.2d at 196 (finding impairment prong not met despite
would-be intervenor’s argument that filing a new action would be difficult to initiate); Wright &

-26-

Miller supra, at § 1908.2. Additionally, the impairment prong is not met if the would-be intervenor
could adequately protect its interests in the action by participating as amicus curiae. See McHenry
v. Comm’r, 677 F.3d 214, 227 (4th Cir. 2012) (finding impairment prong not met because, in part,
would-be intervenor could easily express its views in case through amicus briefs).12
WVCA claims that its members’ interests in avoiding TMDLs for ionic toxicity will be
impaired in three ways if Plaintiffs obtain their requested relief.
First, WVCA contends that an order requiring TMDLS will necessarily result in WVCA
members facing reduced property values and being required to invest in expensive treatment
technology. WVCA Memo. in Supp. 6, ECF. No 24. WVCA points out that Plaintiffs in other suits
against WVCA members have sought orders compelling water treatment mechanisms that could
cost in excess of $100 million. Thus, according to WVCA, if TMDLs are promulgated, WVCA
members will almost certainly be forced to implement costly water treatment endeavors.
WVCA’s first argument on the impairment prong fails for at least two reasons. First, an
order requiring EPA to develop TMDLs would not necessarily result in reduced property values
or expensive treatment requirements for WVCA members because several administrative and
judicial steps lay between this Court granting Plaintiffs’ requested relief and any possible
subsequent revisions to WVCA members’ NPDES permits. Consider the following three events
necessary to establish effluent limits on streams where WVCA members discharge: (1) after an
order granting Plaintiffs relief, EPA would engage in an administrative process to establish the

12

See also Feller, 802 F.2d at 730 (finding impairment prong satisfied, in part, because
participating by intervenors as amicus curiae would not be sufficient to protect against identified
practical impairments); Newport News Shipbuilding & Drydock Co. v. Peninsula Shipbuilders'
Ass'n, 646 F.2d 117, 121 (4th Cir. 1981) (practical disadvantage imposed on intervenor by its
absence from suit was not significantly relieved by allowing intervenor to participate as amicus
curiae).
-27-

content of TMDLs, during which WVCA and its members could advocate—by way of submitting
comments to EPA—for TMDLs high enough that no property value losses or expensive treatment
requirements would be incurred by WVCA members. 13 After EPA promulgates TMDLs, if
WVCA disagrees with their content, it could seek judicial review of EPA’s decision under the
Administrative Procedure Act, 5 U.S.C. § 702. Thus, participating in the administrative process of
developing TMDLs’ content and seeking judicial review of an EPA decision on their content is
the first way that WVCA can pursue its interest in avoiding TMDLs, even if intervention in this
case is denied. 14 After TMDLs are promulgated and judicially reviewed, (2) WVCA may
adequately protect its members’ business interests by participating in WVDEP’s process of
translating EPA’s TMDLs into effluent limits specific to each discharging entity, also known as
WLAs imposed on point sources. 15 Lastly, (3) WVCA members may protect their business
interests at the permitting stage, both in forming the content of their permit applications and in
seeking administrative and judicial review of WVDEP’s decisions on their applications.16 Thus,
there are several discretionary administrative and judicial steps between this Court granting

See 40 C.F.R. § 130.7 (“If the Regional Administrator disapproves such listing and loadings, he
shall, not later than 30 days after the date of such disapproval, identify such waters in such State
and establish such loads for such waters as determined necessary to implement applicable [Water
Quality Standards]. The Regional Administrator shall promptly issue a public notice seeking
comment on such listing and loadings. After considering public comment and making any
revisions he deems appropriate, the Regional Administrator shall transmit the listing and loads to
the State, which shall incorporate them into its current [Water Quality Management] plan.”).
14
See Ctr. For Biological Diversity, 2014 WL 636829, at *8 (citing Our Children's Earth Found.,
2006 WL 1305223, at *3).
15
See 40 C.F.R. § 130.7(c)(1)(ii) (making TMDLs and individual water quality based effluent
limitations subject to public review consistent with the state's continuing planning process); see
also Ctr. for Biological Diversity, 2014 WL 636829, at *8.
16
See W. Va. Code R. § 47-30-10 (“All draft permits shall be . . . publicly noticed and available
for public comment . . .”); W. Va. Code R. § 47-30-3 (“Any denial of the WV/NPDES permit is
appealable to the West Virginia Environmental Quality Board in accordance with the procedures
and authority of W. Va. Code § 22-11-21”); 5 U.S.C. § 702 (person suffering legal wrong by
agency action is entitled to judicial review of the action).
13

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Plaintiffs’ relief and any possible effect on WVCA members’ business interests. And because
those discretionary administrative and judicial steps deal with the actual content of TMDLs and
effluent limits on WVCA member permits, WVCA members can better protect their business
interests at each of these later steps than they could in this litigation, which does not itself involve
the content of TMDLs.
Second, WVCA’s argument contains an even deeper flaw, though, because it goes against
the very essence of the analysis required under the impairment prong. That prong asks if
disposition of the instant action without WVCA would impair or impede WVCA members’ ability
to protect their interests. According to WVCA, it has an interest in this case because there are other
cases where Plaintiffs have sought an order compelling WVCA members to undertake expensive
treatment procedures. WVCA’s Memo. in Supp. 6, ECF No. 21. But in this case, Plaintiffs do not
seek any order that would, by its terms or direct effect, require WVCA members to undertake any
water treatment endeavors. Nor do Plaintiffs seek an order that would itself restrict or burden
WVCA members’ properties. Simply put, denying WVCA intervention in this case would not
impair WVCA’s ability to defend against an order in another case requiring WVCA members to
undertake water treatment endeavors. The best and only place to protect an interest in avoiding an
order in another case is to participate as a party in that other case, not to intervene in this case. For
these two reasons, the Court rejects WVCA’s first argument under the impairment prong.
WVCA’s second argument under the impairment prong also fails. WVCA asserts that if it
is not permitted intervention of right, its interest in avoiding TMDLs will be impaired because in
WVCA’s absence this Court will not benefit from WVCA’s unique understanding of the issues in
this case. Reply 6, ECF. No 24. To support WVCA’s proposition that this unique-understanding
argument is pertinent to the impairment prong analysis, WVCA cites Defenders of Wildlife v.

-29-

North Carolina Department of Transportation, 281 F.R.D. 264, 268 (E.D.N.C. 2012). Notably,
the district court in Defenders of Wildlife cited no authority for the proposition that a non-party’s
unique understanding might be relevant to an analysis of whether a non-party’s ability to protect
its interest would be impaired by denying intervention. Nonetheless, in that case, the intervenors
claimed their knowledge of facts material to the litigation exceeded that of existing parties. WVCA
has made no such allegation here, only that it offers insight from the perspective of the regulated
community into the issues this case presents. However, to the extent that the regulated
community’s insight is pertinent to an administrative review action, one where EPA is tasked with
defending its understanding of its duties under the CWA and the Plaintiffs challenge that
understanding, any contribution WVCA could make to this Court’s understanding of the issues
can be gained by adding WVCA as amicus curiae in this case.
WVCA’s third impairment prong argument fails too. WVCA contends that if it is denied
intervention, its interest in avoiding TMDLs will be impaired because the interests of the existing
party-defendant, EPA, are not aligned with WVCA members’ interests. As an illustration of the
misalignment of these interests, WVCA warns EPA could settle this case in a manner that might
harm WVCA members’ business interests. Reply 6–7, ECF No. 24. The Fourth Circuit has
previously rejected the notion that the impairment prong can be satisfied by an existing party’s
ability to settle a case in a manner that might be adverse to interests of a would-be intervenor.
Westinghouse Elec. Corp., 542 F.2d at 217 (ruling impairment prong not met, even though wouldbe intervenor argued that existing party could settle the case in a manner adverse to interests of
applicant). The Fourth Circuit did not find this argument availing in 1976, and neither does this
Court almost forty years later.17

17

Moreover, the substance of this argument is more attuned to 24(a)(2)’s adequate representation
-30-

For the foregoing reasons, the Court finds that denying WVCA intervention would not, as
a practical matter, impair or impede WVCA’s ability to protect any interest WVCA or its members
arguably have in this litigation. Any interest WVCA members have in avoiding additional
restrictions in their NPDES permits would not be impaired by WVCA’s absence from this suit
because this suit does not involve the content of TMDLs or effluent limits. Future administrative
processes and judicial actions that deal with the content of TMDLs and effluent limits are available
and serve as better fora for advancing WVCA members’ interests in having lenient effluent
limitations in their NPDES permits. Furthermore, to the extent that WVCA’s absence would
impose any conceivable practical disadvantage on WVCA’s ability to protect its members’
interests, this impairment can be significantly alleviated by granting WVCA amicus curiae status
in this case. See McHenry, 677 F.3d at 227. Thus, the impairment prong of Rule 24(a)(2) is not
met here. Despite, the impairment prong not being met, the Court in the next section will address
the final prong for intervention of right.
4. Adequacy of representation by existing parties
WVCA asserts that its interest is not adequately represented by existing parties to this
litigation, namely EPA. Again, even if WVCA were able to meet the preceding requirements for
intervention of right, WVCA has failed to meet its burden under 24(a)(2)’s adequacy prong.
The fourth and final requirement for a right to intervene under 24(a)(2) requires the wouldbe intervenor to show its interest is not adequately represented by existing parties to the litigation.
Fed. R. Civ. P. 24(a)(2); Stuart, 706 F.3d at 349 (citing Teague, 931 F.2d at 260–61). Where the
would-be intervenor shares the same ultimate objective as an existing governmental party, the
would-be intervenor must make a “strong showing” of inadequacy. Stuart, 706 F.3d at 352.

prong, not the impairment prong.
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Essentially, in such a case, the would-be intervenor must rebut a “presumption of adequate
representation.” Id. at 353. The presumption of adequate representation is not rebutted by simply
showing the would-be intervenor disagrees with the government’s “reasonable litigation tactics,”
or that the would-be intervenor has “stronger” or “more specific” interests than the government.
Id at 352. Rather, the presumption is rebuttable by showing the would-be intervenor has
identifiable adverse interests with the existing government party; the existing parties have engaged
in collusion; or the government has committed nonfeasance. See id. (discussing district court’s
analysis); Westinghouse Elec. Corp., 542 F.2d at 216 (“When the party seeking intervention has
the same ultimate objective as a party to the suit, a presumption arises that its interests are
adequately represented, against which the petitioner must demonstrate adversity of interest,
collusion, or nonfeasance.”).
In this case, WVCA must make a strong showing that its interests are not adequately
represented by EPA. EPA is a government entity. Furthermore, WVCA and EPA share the same
ultimate objective because both aim to have this Court affirm EPA’s decision to not require or
develop TMDLs for ionic toxicity. Therefore, WVCA must rebut the presumption that EPA
adequately represents WVCA members’ interests. Stuart, 706 F.3d at 352.
WVCA has not carried its burden of rebutting the presumption that EPA adequately
represents its interests. In its memorandum in support of intervention, WVCA alleges its interest
in this case is more specific than EPA’s interest. However, the Fourth Circuit has foreclosed this
argument by concluding that even where a would-be intervenor’s interest is more specific than the
government’s, this does not rebut the presumption of adequate representation. Stuart, 706 F.3d at
352–353. Although WVCA’s interest in avoiding NPDES effluent limits is more specific than
EPA’s interest in having this Court affirm EPA’s challenged decision, this allegation does not

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rebut the presumption of adequate representation, which may be rebutted by evidence of adverse
interests, collusion, or nonfeasance. Stuart, 706 F.3d at 352–353. Nor has WVCA rebutted the
presumption by alleging it, as a representative of the regulated community, contributes to this
Court’s understanding of the issues in this action. Even if the Government is incapable of
presenting the industry’s perspective for this Court’s consideration, such a limited view does not
constitute adversity of interests, collusion, or nonfeasance. Id.
In its reply brief, WVCA again fails to rebut the presumption of adequate representation.
WVCA replies that its interests are not “directly aligned” with EPA’s, and EPA’s interests are not
as narrowly defined as WVCA’s interests. Neither is sufficient to rebut the presumption because
having interests not aligned with or broader than a would-be intervenor’s simply does not
constitute adversity of interests, collision, or nonfeasance on the part of the governmental party.
Id. WVCA points out that EPA does not share the same economic stake in this action as WVCA
members, and for that reason EPA may not argue as vigorously as WVCA in opposing an order
requiring development of TMDLs. The mere allegation that a governmental party could argue less
vigorously than members of the regulated industry is at best an argument that the government
could commit nonfeasance, which is insufficient to rebut the presumption of adequate
representation. See Virginia Uranium, Inc. v. McAuliffe, No. 15-00031, 2015 WL 6143105, at *3
(W.D. Va. Oct. 19, 2015) (finding nonfeasance absent when government was already diligently
and zealously defending the suit). Lastly, WVCA returns to its now-familiar argument that if
intervention is denied, EPA could settle this case in a manner that could harm WVCA’s interests.
However, WVCA does not explain how EPA could settle a case where the only issue in contention
is whether or not EPA’s decision was unlawful. Moreover, even if EPA were to settle by agreeing
to develop TMDLs, developing TMDLs, as explained above, would not itself harm any WVCA

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member interests in property, coal, or treatment obligations. Without more, WVCA has not shown
how EPA’s ability to settle adversely to WVCA’s interests raises to the level of adverse interests,
collusion, or nonfeasance. That exhausts WVCA’s allegations regarding inadequate
representation.
For the foregoing reasons, the Court finds WVCA has failed to rebut the presumption that
EPA adequately represents WVCA’s interests in this case. Said differently, WVCA’s interests are
adequately represented by EPA, an existing government defendant, which shares the same ultimate
objective with WVCA—a decision from this Court affirming EPA’s decision to not require or
develop TMDLs for ionic toxicity.
To conclude, the Court holds that WVCA does not have a right to intervene in this case
under 24(a)(2). Other than the timeliness prong, WVCA fails to satisfy each of 24(a)(2)’s prongs
requiring a significantly protectable interest, threatened impairment of that interest if intervention
is denied, and inadequate representation by existing parties. For these reasons, the Court DENIES
WVCA intervention of right under 24(a)(2).
B. Permissive intervention under 24(b)
Next, WVCA asks this Court to grant it permissive intervention in this action under Rule
24(b). As explained below, the Court concludes permissive intervention by WVCA is not proper
in this case.
When intervention of right is not warranted under 24(a)(2), a court may nevertheless grant
permissive intervention under Rule 24(b) if the non-party files a timely motion for such and has a
claim or defense that shares a common question of law or fact with the main action. Fed. R. Civ.
P. 24(b). If the would-be intervenor has no claim or defense with a question of law or fact in
common with the main action, permissive intervention should be denied. See Brown v. Eckerd

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Drugs, Inc., 663 F.2d 1268, 1278 (4th Cir. 1981) vacated on other grounds by, 457 U.S. 1128
(1982) (citing Wright & Miller supra, at §§ 1911, 1916) (finding no abuse of discretion where
would-be intervenor’s claim presented issues of law and fact in common with those of the class);
see also Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002) abrogated on
other grounds by, Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). If the Court
finds a common question of law or fact, the minimal requirements of Rule 24(b) have been satisfied
and it is then within the court’s discretion whether to allow intervention. Wright & Miller supra,
§ 1911; Kootenai Tribe of Idaho, 313 F.3d at 1111.
In considering permissive intervention, the court must ask ‘whether the intervention will
unduly delay or prejudice the adjudication of the original parties' rights.’” Stuart, 706 F.3d at 349
(quoting Fed. R. Civ. P. 24(b)(3)). While concerns of judicial economy and need for guidance are
not considered under 24(a), these are pertinent to permissive intervention analysis. In re Sierra
Club, 945 F.2d 776, 779 (4th Cir. 1991). Adding parties to a case almost always results in some
delay, and so usually delay alone does not mean that intervention should be denied. Wright &
Miller supra, § 1913. Instead, Rule 24(b) requires undue delay. Id. In determining whether extra
time would be an undue delay, the court must balance the delay threatened by intervention against
the advantages promised by it. Id. If there is another adequate remedy available to protect the
would-be intervenor's rights, this weighs in favor of denying intervention. Id. A court does not err
in denying permissive intervention “when undue delay exists without a corresponding benefit to
the process, the litigants, or the court, especially where an existing party zealously pursues the
same ultimate objectives as a movant.” Lee v. Virginia Bd. of Elections, No. 15-357, 2015 WL
5178993, at *4 (E.D. Va. Sept. 4, 2015) (citing Stuart, 706 F.3d at 355).

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In this case, although WVCA’s motion to intervene is timely brought, and the Court
assumes without deciding that WVCA has a claim or defense that shares a common question of
law or fact with this action, permissive intervention is not proper because it would unduly delay
resolution of this action and burden judicial resources. “Additional parties can complicate routine
scheduling orders, prolong and increase the burdens of discovery and motions practice, thwart
settlement, and delay trial.” Stuart, 706 F.3d at 350. Here, bringing WVCA into the suit by way of
permissive intervention would complicate discovery because WVCA would be entitled to
discovery from both Plaintiffs and EPA, requiring existing parties to duplicate their discovery
efforts. Furthermore, adding WVCA as a party would complicate for the existing parties other
aspects of this litigation, including motions practice and any possible settlement negotiations. As
for the Court’s resources, dealing with an extra party by its very nature requires additional court
resources. In fact, if the Court were to grant permissive intervention to WVCA, an association of
coal companies with NPDES permits, this would invite WVCA’s permit holding members to
individually petition for permissive intervention. If such were the case, the Court could not draw
a meaningful line that prevents all NPDES permit holders from gaining permissive intervention in
this case, since all would have an argument for intervention just as tenable as WVCA’s. Just
dealing with this flood of foreseeable motions for intervention would cost substantial judicial
resources. For these reasons, the Court finds that adding WVCA as a party would result in some
amount of delay and cost the court resources.
With regard to an offsetting benefit, the delay and resource consumption that would come
with granting permissive intervention are not offset by any corresponding benefit attainable only
by intervention rather than amicus participation. The offsetting benefit to existing parties, the
court, and this action promised by granting WVCA intervention consists of the Court learning the

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arguments of the coal industry in this administrative review action. See WVCA’s Reply in Supp. of
Mot. to Intervene 9, ECF No. 24. Specifically, WVCA seeks intervention in order to argue that
EPA has complied with the agency’s duties under the CWA. But EPA already zealously advances
this argument, and EPA—as an administrative agency possessing expertise in the field of
environmental science and being charged with enforcing the CWA—is in the best position to argue
its own compliance, see Ctr. For Biological Diversity, 2014 WL 636829, at *9. Even assuming
arguments contributed by WVCA would be useful in a case where EPA must present its own
rationale justifying its decision, see Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 50 (1983) (“It is well-established that an agency's action must be upheld, if at all, on
the basis articulated by the agency itself.”), the Court finds below that the coal industry’s
perspective could be gained by granting WVCA amicus status in this case. Thus, although WVCA
may offer the unique perspective of the coal industry, granting WVCA intervention as a party
instead of granting it amicus status will not benefit resolution of this action, or protect WVCA
members’ interests. 18 Instead, WVCA’s intervention is “likely [only] to result in duplicative
briefing adding a layer of unwarranted procedural complexity.” Ctr. for Biological Diversity, 2014
WL 636829, at *9. As such, adding WVCA as a party would require expending additional court
resources without a corresponding benefit attainable only by intervention rather than amicus
participation. For these reasons, the Court concludes granting WVCA intervention would unduly

18

Additionally, as discussed above, this administrative review action is not an appropriate forum
for WVCA to protect its members’ interests in maintaining the existing effluent limits in their
NPDES permits. See In re Endangered Species Act Section 4 Deadline Litig., 270 F.R.D. 1, 6-7
(D.D.C. 2010). Should WVCA need to further those interests, it can best do so by participating in
the administrative process of setting TMDLs, effluent limits, and permit restrictions, and by filing
administrative review actions in response to any agency decisions adverse to its members’
interests.
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delay adjudication of this action. Stuart, 706 F.3d at 355; Ctr. for Biological Diversity, 2014 WL
636829, at *9.
To conclude, although WVCA’s motion for intervention is timely and the Court assumes
WVCA has a claim or defense that has a question of law or fact in common with this action, adding
WVCA would unduly delay adjudication of this dispute over EPA’s decision. Because granting
WVCA intervention would unduly delay and prejudice this litigation, the Court DENIES
WVCA’s request for permissive intervention under 24(b).
C. Amicus Curiae Status
Although WVCA is not entitled to intervene under 24(a)(2), and it is improper to grant
WVCA intervention under 24(b), it is proper to grant WVCA amicus curiae status in this case.
A non-party denied intervention may nonetheless present its views to the Court if it is
granted amicus status. See Stuart, 706 F.3d at 355 (“While a would-be intervenor may prefer party
status to that of [an amicus curiae], . . . amici often make useful contributions to litigation.”).
Granting amicus status and deciding to accept amicus briefs is within the discretion of district
courts, see Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970), and “a court does not abuse its
discretion in denying permissive intervention when participation . . . as an amicus satisfies the
asserted need for intervention,” 4 Am. Jur. 2d Amicus Curiae § 5 (Westlaw database last updated
Nov. 2015) (citing United States v. State of Mich., 940 F.2d 143 (6th Cir. 1991); Bates v. Jones,
127 F.3d 870 (9th Cir. 1997)).
In this case, granting WVCA amicus status is proper in light of WVCA’s argument for
intervention. WVCA seeks intervention in order to offer for the Court’s consideration the
perspective of the coal industry on the issue of whether EPA’s decision is in compliance with the
CWA. But WVCA does not need party status to do this. WVCA can adequately offer its

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perspective on any issue presented by this litigation—from the most mundane to the ultimate CWA
compliance issue—by appearing and being heard as an amicus curiae. The Court assumes that
WVCA’s perspective would be useful to the existing parties and this Court, although this is an
administrative review action where EPA must defend its decision by offering the actual reasoning
behind that decision. For this reason, the Court GRANTS WVCA amicus curiae status in this
action subject to the conditions explained below.
IV.

Conclusion

For the previously stated reasons, the Court DENIES WVCA’s Motion to Intervene. The
Court holds that WVCA does not have a right to intervene in this case under 24(a)(2), and
permissive intervention under 24(b) is not proper. However, the Court GRANTS WVCA amicus
curiae status pursuant to the Court’s order below.
The Court ORDERS:
1. WVCA may file a memorandum as amicus curiae on any motion in this case.
2. The deadline for any amicus memorandum is the same as the deadline for the
memorandum of the party whose position the amicus memorandum supports.
But when the amicus memorandum supports the moving party, the deadline for
the amicus memorandum in support is seven days after the filing of the principal
motion, with a three-day extension based on electronic service of the motion.
3. The page limit for an amicus memorandum is the same as the limit for a
memorandum of the party whose position the amicus memorandum supports.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

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December 14, 2015