Sierra Club v. U.S. E.P.A.

Decision Date16 June 1993
Docket NumberNo. 91-16310,91-16310
Citation995 F.2d 1478
Parties, 61 USLW 2789, 26 Fed.R.Serv.3d 923, 23 Envtl. L. Rep. 20,999 SIERRA CLUB, et al., Plaintiff-Appellee, v. US ENVIRONMENTAL PROTECTION AGENCY, et al., Defendant, and City of Phoenix, Intervention-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Craig J. Reece, Asst. City Atty., Phoenix, AZ, for appellant.

Maria Savasta Kennedy, Sierra Club Legal Defense Fund, San Francisco, CA, for appellee.

James C. Hair, Jr., Asst. U.S. Atty., Phoenix, AZ, for defendant.

Appeal from the United States District Court for the District of Arizona.

Before: BROWNING, THOMPSON and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

This case has one issue, intervention as a matter of right. The Sierra Club sued the EPA under the Clean Water Act for a declaratory judgment and an injunction. The relief sought would require the EPA to change the terms of permits issued to the City of Phoenix for two of its wastewater treatment plants. The district court denied the City's motion to intervene. We reverse, and hold that the City had a right to intervene.

I. Facts

The Sierra Club and an individual sued the Environmental Protection Agency and its administrators under the citizens' suit provision of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act. 1 33 U.S.C. § 1365(a)(2). The lawsuit made two claims:

1. The EPA had a duty to promulgate regulations establishing water quality standards for toxic pollutants for the State of Arizona under 33 U.S.C. § 1313(c)(4), because the state had not done so;

2. The State of Arizona was required to submit lists of impaired waters, point sources discharging pollutants into them, and control strategies to reduce such discharges, under 33 U.S.C. § 1314(l )(1). Its lists were insufficient under the statute, so the EPA had a duty to make a final decision on the lists, and to implement control strategies.

The prayer for relief sought a declaratory judgment and an injunction requiring the EPA to do the following:

1. promulgate water quality standards for toxic pollutants for Arizona waters under 33 U.S.C. § 1313(c); 2

2. list impaired waters, point sources, and control strategies under 33 U.S.C. § 1314(l ), and implement the strategies "by promulgating final National Pollution Discharge Elimination System permits containing pollutant-specific, numerical, water quality-based effluent limitations that reduce toxics being discharged from each of the Arizona point sources."

The City of Phoenix 3 moved to intervene, both as a matter of right and permissively, 4 under Federal Rule of Civil Procedure 24. The district court denied the applications for lack of a "protectable interest" under Portland Audubon Soc. v. Hodel, 866 F.2d 302 (9th Cir.), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989), and Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1970). The complaint alleged that two wastewater treatment plants operated by the City discharged toxic pollutants, pursuant to permits, 5 into the Salt and Gila Rivers. Those rivers were impaired by pollution, so EPA had a duty to list the wastewater treatment plants as sources, and formulate individual control strategies to reduce pollution. This duty was to be performed by imposing new permit requirements on the City's wastewater treatment plants in order to meet water quality standards. This claim was based upon 33 U.S.C. § 1314(l ). In practical terms, the Sierra Club wanted the court to order the EPA to change the City's NPDES permits, in order to reduce the amount of pollutants from those wastewater treatment plants.

Our decision does not concern whether the water in the rivers falls below appropriate water quality standards, or whether the City's NPDES permits should be tightened up to reduce the amounts of toxic pollutants the City may discharge from the two wastewater treatment plants. It has to do only with whether the City of Phoenix had a right to defend the lawsuit which sought a judgment to that effect. We conclude that it did.

II. Analysis

We review the district court's denial of the City's motion to intervene as of right de novo. Scotts Valley Band of Pomo Indians v. United States, 921 F.2d 924, 926 (9th Cir.1990). One part of the test for intervention as of right, timeliness, is reviewed for abuse of discretion. Yniguez v. Arizona, 939 F.2d 727, 730-31 (9th Cir.1991), motion to dismiss as moot denied, 975 F.2d 646 (1992).

The rule on intervention as of right requires that the applicant claim an interest the protection of which may as a practical matter be impaired or impeded if the lawsuit proceeds without him:

Upon timely application anyone shall be permitted to intervene in an action: (2) when 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). We apply a four-part test under this rule: (1) the motion must be timely; (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action. Scotts Valley Band, 921 F.2d at 926. The rule is construed "broadly, in favor of the applicants for intervention." Id.; United States ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir.1992); Washington State Bldg. & Constr. Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir.), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1982).

A.

Timeliness is undisputed. The application for intervention was made at the outset of the litigation, before the EPA had even filed its answer. The district court did not abuse its discretion in determining that the City's application was timely. See Yniguez, 939 F.2d at 730-31.

The fourth element, inadequacy of representation by the existing parties, has not been put at issue. The City argues that neither Sierra Club, which seeks to alter its permits, nor EPA, which enforces the permits against the City, can be expected to represent the City's interests in the lawsuit. Sierra Club offers no argument to the contrary. The City's showing suffices on this element. See California v. Tahoe Regional Planning Agency, 792 F.2d 775, 778 (9th Cir.1986). Cf. Scotts Valley Band, 921 F.2d at 926-27.

B.

The complaint establishes prima facie satisfaction of the second element. The complaint says that the City owns wastewater treatment plants and discharges pollutants from them pursuant to permits it holds, and those plants and permits are among the subjects of the action. But the word "interest" in the statute has been the subject of judicial interpretation requiring that the term be qualified by the adjective "protectable." The central issue in this case is whether the City's interest is "protectable." Without that, the second element cannot be satisfied.

1.

The requirement of "protectability" was formulated by the Supreme Court in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1970). Donaldson had worked for a circus. The IRS issued a summons to the circus and its accountant for the circus's records relating to Donaldson's personal income taxes. Donaldson sought to intervene in the district court proceeding by which the IRS sought to enforce the summons, and ultimately lost, because he lacked a "protectable interest" in the proceeding. The Supreme Court emphasized that the IRS sought the circus's records, not Donaldson's. Id. at 522-23, 91 S.Ct. at 538. Donaldson did not own the records, and he had no legal privilege or other right to keep his former employer from giving them to the IRS. Id. at 523, 91 S.Ct. at 538. He had an interest, because the circus's records might show that he owed more tax than he had paid. But his interest was not "protectable," because the records were not his, and he had no proprietary right, evidentiary privilege, work product claim, constitutional claim to suppression, or any other right to interfere with the circus's disclosure to the IRS. Id. at 530, 91 S.Ct. at 542. If the circus were to give its records relating to Donaldson to the IRS voluntarily, Donaldson would have no right to suppress them. Id. at 531, 91 S.Ct. at 542.

We fleshed out the Donaldson requirement in the case of Portland Audubon, 866 F.2d 302. In Portland Audubon, environmental advocacy groups sued the Interior Department to enjoin sales of old-growth timber. The Bureau of Land Management had proposed sales, but the advocacy organizations claimed that logging the old trees would threaten the habitat of the northern spotted owl. A logging advocacy group and some logging contractors were allowed to intervene with respect to some of the claims, but not the claim under the National Environmental Policy Act ("NEPA"). They appealed the ruling that they had no right to intervene as defendants on the NEPA claim. We affirmed because the logging groups lacked a protectable interest under Donaldson. We followed a Seventh Circuit case, Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.1982) (per curiam), for the proposition that "the governmental bodies charged with compliance can be the only defendants." Portland Audubon, 866 F.2d at 309 (quoting Wade, 673 F.2d at 185).

Unlike the loggers in Portland Audubon, the City owns rights protected by law relating to the property which is the subject of the action. The loggers' interest in Portland Audubon appears to have...

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