American Lung Ass'n v. Reilly
| Citation | 962 F.2d 258 |
| Parties | , 60 USLW 2747, 22 Fed.R.Serv.3d 469, 22 Envtl. L. Rep. 20,934 AMERICAN LUNG ASSOCIATION, American Lung Association of Nassau-Suffolk, American Lung Association of Queens, American Lung Association of Brooklyn, Environmental Defense Fund, Natural Resources Defense Council, State of New York, State of Connecticut, Commonwealth of Massachusetts, State of Maine, State of Rhode Island and Joseph Bergen, Plaintiffs-Appellees, v. William K. REILLY, Administrator of the U.S. Environmental Protection Agency and the U.S. Environmental Protection Agency, Defendants-Appellees, Alabama Power Company, Appalachian Power Company, Baltimore Gas & Electric Company, Carolina Power & Light Company, Centerior Energy Corporation, Cleveland Electric Illuminating Company, Toledo Edison Company, Central & South West Services, Inc., Central Power & Light Company, Public Service Company of Oklahoma, Southwestern Electric Power Company, West Texas Utilities Company; Central Hudson Gas & Electric Corporation; Central Illinois Light Company; Central Illinois Public Service Company; The Cincinnati Gas & Electric Company; Columbus Southern Power Company; Commonwealth Edison Company; Consolidated Edison Company of New York, Inc.; Consumers Power Company; the Dayton Power & Light Company; Delmarva Power & Light Company; the Detroit Edison Company; Duke Power Company; Duquesne Light Company; Florida Power & Light Company; Florida Power Corporation; Georgia Power Company; Gulf Power Company; Illinois Power Company; Indiana Michigan Power Company; Indianapolis Power & Light Company; Iowa Public Service Company; Kansas City Power & Light Company; Kentucky Power Company; Kentucky Utilities Company; Madison Gas & Electric Company; Minnesota Power Company; Mississippi Power Company; Monongahela Power Company; NYS Electric & Gas Corporation; Northern Indiana Public Service Company; Oglethorpe Power Corporation; Ohio Edison Company; Pennsylvania Power Company; Ohio Power Company; Ohio Valley Electric Corpor |
| Decision Date | 04 May 1992 |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Henry V. Nickel, Washington, D.C. (Lucinda Minton Langworthy, Norman W. Fichthorn, Hether C. Macfarlane, Hunton & Williams, Washington, D.C.; Franklin H. Stone, Harold C. Geary, Hunton & Williams, New York City, of counsel), for appellants.
Robert J. Zastrow, New York City (Karen S. Jore, Gregory R. Belcamino, Strook & Strook & Lavan, of counsel), for plaintiffs-appellees American Lung Ass'n, American Lung Ass'n of Nassau-Suffolk, American Lung Ass'n of Queens, American Lung Ass'n of Brooklyn, Environmental Defense Fund and Joseph Bergen.
Robert Abrams, Atty. Gen. of the State of New York , for plaintiff-appellee State of N.Y.
Craig D. Galli, U.S. Dept. of Justice, Environment & Natural Resources Div., Environmental Defense Section (Gerald K. Gleason, of counsel), filed a letter for defendants-appellees.
Before: TIMBERS and PRATT, Circuit Judges, and Michael B. MUKASEY, District Judge of the United States District Court for the Southern District of New York, sitting by designation.
Sixty-seven electric utilities and three electric utility industry associations (collectively, "utilities") appeal from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, which denied their motion to intervene as of right as defendants in a citizen suit brought under the Clean Air Act, 42 U.S.C. § 7401 et seq., to compel the Environmental Protection Agency (EPA) to review and revise the national ambient air quality standards (NAAQSs) for ozone, 141 F.R.D. 19 (E.D.N.Y.1992). We conclude that Judge Bartels acted within his discretion in denying the utilities' motion to intervene. We also determine that the district court had subject-matter jurisdiction of the action. Accordingly, we affirm.
Under the Clean Air Act, EPA was required to make a final decision (either to revise the NAAQSs or retain the old ones) no later than December 31, 1990. Since EPA had not (and still has not) done so, plaintiffs filed this suit in the Eastern District of New York, alleging that it had breached its non-discretionary, statutory duty of reviewing (and if necessary revising), at five-year intervals, the NAAQSs for ozone, see 42 U.S.C. § 7409(d) (1977). Plaintiffs sought to compel EPA to perform its statutory duties. Specifically, the plaintiffs sought to compel EPA to (a) publish, within 180 days of the district court's order, either proposed revisions to the NAAQSs or a proposed decision formally declining to revise the NAAQSs, (b) provide the public with opportunity for notice and comment, and (c) promulgate final regulations thereafter.
The utilities moved to intervene as parties defendant. Their proposed answer asserted two defenses: (1) that "[t]he complaint fails to state a claim against Defendants upon which relief can be granted", and (2) that the district court "lacks subject matter jurisdiction over the Plaintiffs' complaint." Judge Bartels denied the motion to intervene, and the utilities filed a notice of appeal on February 27, 1992.
The next day, February 28, 1992, Judge Bartels signed a consent order and final judgment which, inter alia, ordered EPA, by August 1, 1992, to publish a proposed decision, made pursuant to notice and comment rulemaking procedures, to revise (or not) the existing NAAQSs for ozone. Judge Bartels also ordered EPA to allow a public comment period of at least 60 days, and then to publish a final decision by March 1, 1993.
A denial of intervention as of right under Fed.R.Civ.P. 24(a)(2) is reviewed under an abuse of discretion standard, as only the district judge has the "feel of the case" necessary to "weigh the advantages to be derived from appellants' participation as intervenors". United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 991 (2d Cir.1984) (Friendly, J.). To merit consideration for intervention under rule 24(a)(2), a movant must (1) file a timely application, (2) claiming an interest relating to the property or transaction which is the subject of the action, (3) with the movant so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect its interest, (4) unless the movant's interest is adequately represented by existing parties. Washington Elec. v. Massachusetts Mun. Wholesale Elec., 922 F.2d 92, 96 (2d Cir.1990). See also Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871, 874 (2d Cir.1984).
Judge Bartels concluded that the motion was timely, but that the utilities fell short on the other three requirements of rule 24(a)(2). With respect to the second requirement, he saw the utilities' interest in the subject matter of the action as based on a "double contingency" of events: "first, the plaintiffs must prevail in this lawsuit and second, the defendants must then downwardly revise the NAAQS[s]". Thus, he concluded, the utilities' interests were too "remote from the subject matter of the proceeding" and too "contingent upon the occurrence of a series of events." (citing Washington Elec., 922 F.2d at 96). With respect to the third requirement, he concluded that since the utilities could participate in any NAAQS rulemaking ordered by the court, a judgment in favor of the plaintiffs could not as a practical matter impair the utilities' ability to challenge any defect of any subsequent rulemaking. As to the fourth requirement, Judge Bartels concluded that the utilities could not demonstrate an interest in the rulemaking schedule that would not be adequately represented by EPA.
On appeal the utilities claim primarily that their interest is not so much in the ultimate rule promulgated by the EPA, as Judge Bartels understood it to be, but in having an opportunity to help shape the schedule for this judicially-compelled rulemaking. The utilities argue that they might have insufficient time to prepare a response to any proposal or to submit comments during the judicially-established comment period. They further point out that absent intervention, they would have no standing to obtain an extension of the deadlines imposed by the district court. To this end, they inform us of numerous cases, mostly from district courts, that have allowed intervention in similar cases.
The utilities' arguments are inadequate to overcome the district court's discretionary denial of intervention. First, as the plaintiffs have correctly pointed out, the cases cited by the utilities that have allowed intervention are primarily cases involving the promulgation of rules for particular industries. In...
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