962 F.2d 108 (1st Cir. 1992), 91-1895, United States v. AVX Corp.

Docket Nº:91-1895.
Citation:962 F.2d 108
Party Name:UNITED STATES of America, et al., Plaintiffs, Appellees, v. AVX CORPORATION, et al., Defendants, Appellees. National Wildlife Federation, Intervenor, Appellant.
Case Date:April 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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962 F.2d 108 (1st Cir. 1992)

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

AVX CORPORATION, et al., Defendants, Appellees.

National Wildlife Federation, Intervenor, Appellant.

No. 91-1895.

United States Court of Appeals, First Circuit

April 21, 1992

Heard Feb. 4, 1992.

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[Copyrighted Material Omitted]

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Eric R. Glitzenstein, with whom Katherine A. Meyer and Harmon, Curran, Gallagher & Spielberg, Washington, D.C., were on brief, for intervenor, appellant.

John A. Bryson, Atty., U.S. Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Myles E. Flint, Deputy Asst. Atty. Gen., Ellen M. Mahan and Anne S. Almy, Attys., U.S. Dept. of Justice, Washington, D.C., were on brief, for plaintiff, appellee U.S.

Matthew T. Brock, Asst. Atty. Gen., Boston, Mass., on brief, for plaintiff, appellee Com. of Mass.

Paul B. Galvani, with whom Roscoe Trimmier, Jr. and Ropes & Gray, Boston, Mass., were on brief, for defendant, appellee Aerovox, Inc.

David A. McLaughlin and McLaughlin & Folan, P.C., New Bedford, Mass., on brief, for defendant, appellee Belleville Industries, Inc.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

The National Wildlife Federation (NWF), an intervenor below, tries to appeal the entry of a consent decree concerning the cleanup of New Bedford Harbor. NWF bills the appeal as one involving critical interpretive questions anent the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1988). There is, however, a prevenient issue; the original parties to the litigation contend that NWF lacks standing to maintain the appeal. Because NWF cannot push past this threshold, we dismiss for lack of appellate jurisdiction (without considering the substantive questions that lie beyond the doorstep).

I. BACKGROUND

The litigation that undergirds this appeal is nearly a decade old. In 1983, two governmental plaintiffs, the United States and the Commonwealth of Massachusetts, acting as natural resources trustees, brought suit for damages under CERCLA § 107, 42 U.S.C. § 9607, in the United States District Court for the District of Massachusetts. The complaint alleged that Aerovox, Inc., Belleville Industries, Inc., and four other defendants bore responsibility for the release of polychlorinated biphenyls into the Acushnet River and New Bedford Harbor, causing injury to natural resources. An amended complaint, filed in March 1984, added claims for recovery of costs to be incurred in remediating the river and harbor.

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The subsequent course of the litigation has been much chronicled. 1 We need not retrace the district court's steps. For the purpose at hand, it suffices to say that, in 1987, NWF moved to intervene as a party plaintiff, premising its motion on the divergence between its views and the views of the plaintiffs as to the appropriate measure of damages for environmental harm. NWF professed concern that, due to this divergence in views, the plaintiffs might settle the pending action too cheaply. On April 27, 1989, the district court granted permissive intervention for the limited purpose of allowing NWF to brief and argue the following issues: (1) the legal requirements applicable to any proposed consent decree; (2) the appropriate measure of natural resource damages under CERCLA; and (3) the legal requirements for cleanup under CERCLA. In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution, 712 F.Supp. 1019, 1023 (D.Mass.1989). The order permitting intervention also granted NWF the right to appeal "from a judgment it views as adverse" in respect to these issues. Id.

On December 18, 1990, the plaintiffs proposed a consent decree memorializing the anticipated settlement of their claims against Aerovox and Belleville. The decree provided that the settling defendants would pay $9,450,000 in response costs and $3,150,000 as compensation for injuries to natural resources in the harbor area. In exchange for this $12,600,000 cash settlement, the plaintiffs would covenant "not to sue or to take any other civil or administrative action" against Aerovox or Belleville.

On January 7, 1991, the federal government solicited public comment on the proposed decree, 56 Fed.Reg. 535 (1991), as required by CERCLA § 122(d)(2), 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7 (1990). NWF submitted comments contending that the suggested cash-out settlement would violate CERCLA in two respects. First, NWF argued that "the proposed decree contravened [CERCLA § 122(f) ] because EPA has not approved a final response action at the site." 2 Second, NWF argued that the proposed decree ran afoul of CERCLA § 122(j) because it contemplated that the defendants would obtain covenants not to sue without any assurance that they would "take appropriate actions necessary to protect and restore the natural resources damaged by such release ... of hazardous substances." 42 U.S.C. § 9622(j)(2). Unimpressed by NWF's comments, the plaintiffs pressed the district court to approve the consent decree. On July 16, 1991, the district court, ore tenus, overruled NWF's objections and entered the decree. This appeal followed.

Because the dispositive issue in this proceeding implicates NWF's standing to pursue its appeal, we turn immediately in that direction. NWF, an intervenor, is the lone appellant. The plaintiffs (the federal and state governments) and the settling defendants (Aerovox and Belleville) all appear as appellees, the district court having entered final judgment, Fed.R.Civ.P. 54(b), as to all claims against Aerovox and Belleville. The

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suit remains pending in the court below against other defendants.

II. THE NECESSITY FOR STANDING

Our odyssey through the often Byzantine world of standing is greatly assisted in this instance by the Supreme Court's opinion in Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). There, Dr. Diamond, a pediatrician, intervened as a defendant in a class action brought by a group of gynecologists seeking to invalidate an Illinois abortion law. Later, disappointed by an opinion of the Seventh Circuit, Dr. Diamond took an appeal to the Supreme Court in which he sought to challenge an injunction barring enforcement of certain sections of the statute. Id. at 61, 106 S.Ct. at 1702. He prosecuted the appeal notwithstanding that the state (on whose side he had originally intervened) chose not to pursue a further appeal. Id. at 56, 61, 106 S.Ct. at 1700, 1702. The Court ruled that, since the intervenor was the sole appellant, he could no longer ride the state's coattails, but must himself bear the burden of showing that he met the requirements for standing. 3 Id. at 63-64, 106 S.Ct. at 1703-1705. In language of unmistakable clarity, Justice Blackmun wrote that "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." Id. at 68, 106 S.Ct. at 1706. Accord Boston Tow Boat Co. v. United States, 321 U.S. 632, 633-34, 64 S.Ct. 776, 776-77, 88 L.Ed. 975 (1944). Because he had not made the requisite showing, Dr. Diamond's appeal was dismissed for want of appellate jurisdiction. See Diamond, 476 U.S. at 71, 106 S.Ct. at 1708.

NWF suggests that Diamond is not controlling because the original parties here--the federal and state sovereigns, on the one hand, and the settling defendants, on the other hand--remain parties to the appeal. This suggestion is a prime example of a litigant allowing hope to triumph over reason. In Diamond, the intervenor also argued that the party on whose side he intervened--the state--remained a party to the litigation, thus keeping the original controversy alive and allowing him to derive the benefit of the state's standing. Id. at 63-64, 106 S.Ct. at 1703-1705. The Court squarely rejected the argument, noting that while the state's interests may theoretically have remained adverse to those of the other appellees, the state's failure to appeal the issue removed the underlying controversy upon which the intervenor had "piggyback[ed]" in the lower courts. Id.

So here. In the district court, the plaintiffs were seeking to maximize cleanup efforts; the defendants were hoping to minimize their financial liability. This provided the "adversariness" that rendered the question of NWF's standing academic. See id. at 68-69, 106 S.Ct. at 1706-1707. The entry of the consent decree, with the full support of all the settling parties, changed the calculus. While the parties to the decree are still parties to the action and to the appeal, they are now opponents in name only; in practical effect, the plaintiffs and the settling defendants no longer represent opposing interests. The underlying controversy between them has been resolved. Hence, given the case's current posture, there is no longer any extraneous support to which NWF may cling.

In point of fact, this case presents a stronger argument against continued piggybacking than the Diamond case. In Diamond, the state, while not itself appealing, had filed a letter of interest making clear that it favored the position that the appellant was endeavoring to advance. Id. at 61, 106 S.Ct. at 1702. Here, however, there is no such enduring confluence of interests. The parties on whose side NWF originally intervened--the federal and state sovereigns--want to preserve the very decree that NWF wants to defenestrate. They are adamantly opposed to the position that the intervenor seeks to espouse on appeal. Therefore, NWF finds itself in an

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even weaker position than that occupied by Dr. Diamond: in Thomas Wolfe's...

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