U.S. v. Metropolitan St. Louis Sewer Dist.

Decision Date22 June 2009
Docket NumberNo. 08-3404.,08-3404.
Citation569 F.3d 829
PartiesUNITED STATES of America; State of Missouri, Plaintiffs-Appellees, v. METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant-Appellee, Missouri Coalition for the Environment Foundation, Intervenor-Appellee, Missouri Industrial Energy Consumers, Intervenor-Appellant. Metropolitan St. Louis Sewer District, Counter Claimant, v. State of Missouri, Counter Defendant.
CourtU.S. Court of Appeals — Eighth Circuit

Kenneth Lee Marshall, argued, Dale A. Guarigla and Bruce C. Oetter, on the brief, St. Louis, MO, for appellant.

Elizabeth J. Hubertz, argued, St. Louis, MO, Sarah B. Kovenock (law student), for Appellee Missouri Coalition for the Environment Foundation.

Sambhav N. Sankar, argued, Washington, DC, for Appellee USA.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The Missouri Industrial Energy Consumers (MIEC), an association of businesses formed to address its members' concerns about utility services, moved to intervene in an enforcement action filed against the Metropolitan St. Louis Sewer District (District) by the United States and the State of Missouri under the Clean Water Act, 33 U.S.C. § 1251 et seq. The district court1 denied the motion for lack of standing. MIEC appeals, and we affirm.

I.

The District manages a sewer and wastewater system for approximately 1.4 million residents and other users in the St. Louis area. The complaint filed by the United States and the State of Missouri alleges that from 2000 to 2005, the District discharged raw sewage into local waterways and otherwise violated its state issued permits. It alleges that the discharges have resulted from "inadequate flow capacity in the collection system and at the wastewater treatment plants; ... aged and corroded pipes and force mains; illegal and improper cross-connections between sanitary and stormwater sewers; [and] poor maintenance," among other causes. The plaintiffs seek civil penalties for each violation and an injunction directing the District to come into "permanent and consistent compliance" with the Clean Water Act (Act) and to minimize the imminent and substantial risks to human health posed by the discharge of raw sewage.

Based on these alleged violations, the Missouri Coalition for the Environment Foundation (Coalition), a nonprofit organization dedicated to preserving and enhancing the state's environment, served the District with notice of its intent to file a citizen suit under the Act. 33 U.S.C. § 1365(b)(1)(A) (2009). After the United States and Missouri filed this action, the Coalition sought to intervene under § 1365(b)(1)(B), which grants citizens a right to intervene if the government is already prosecuting an enforcement action. See Fed.R.Civ.P. 24(a)(1). The district court granted the Coalition's unopposed motion to intervene.

MIEC is a general business trade association with seven members who discharge into the District's wastewater system, and pay user rates and fees amounting to 5% of the District's revenues. These members are Anheuser-Busch, The Boeing Company, Chrysler Corporation, Hussmann Corporation, Monsanto, Pfizer, and Procter & Gamble. MIEC members hold seven of the 220 industrial wastewater discharge permits issued by the District. Such permits authorize the holder to discharge a specific volume of wastewater at a specified rate and require monitoring of the volume and pollutant levels in the wastewater discharged.

MIEC filed a motion to intervene in this case as a neutral party for the limited purpose of participating in "discussions, negotiations, mediations, hearings, trials and/or settlements" relating to the remedy. More specifically, MIEC wants to be a party to proceedings and discovery regarding "the scope of the remedial work contemplated, the time frame when the proposed remedial work needs to be completed, the environmental impacts ..., and the financing options regarding the proposed remedial work." It expressed concern that any injunction or consent decree imposed on the District might result in increased user rates and fees for its members. It also prayed that the court enter an order "ensuring that the remedy is protective of the environment, compliant with the Clean Water Act, and will not unreasonably burden the [District's] ratepayers." MIEC argued that it had a statutory right to intervene under Federal Rule of Civil Procedure 24(a)(1) and 33 U.S.C. § 1365(b)(1)(B), as the Coalition had. It also sought to intervene as a matter of right under Rule 24(a)(2) and permissively under Rule 24(b). While the District supports MIEC's intervention, the United States and the Coalition oppose it. The State of Missouri takes no position on the issue.

The district court denied the motion after determining that MIEC lacked the Article III standing necessary for intervention because its alleged injuries were too speculative and not particularized. The denial of a motion to intervene of right is immediately appealable as a final judgment, South Dakota v. U.S. Dep't of Interior, 317 F.3d 783, 785 n. 2 (8th Cir.2003), and our review is de novo. Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir.2007).

II.

In our circuit, a party seeking to intervene must establish Article III standing in addition to the requirements of Rule 24.2 Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir.1996). To demonstrate standing, a plaintiff must clearly allege facts showing an injury in fact, which is an injury to a legally protected interest that is "concrete, particularized, and either actual or imminent." Curry v. Regents of the Univ. of Minn., 167 F.3d 420, 422 (8th Cir.1999). The purpose of the imminence requirement is "to ensure that the alleged injury is not too speculative ... [and] that the injury is certainly impending." Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n. 2, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation omitted). The plaintiff must also show that the alleged injury is fairly traceable to the defendant's conduct and that a favorable decision will likely redress the injury. Id. at 560-61, 112 S.Ct. 2130.

When a party seeks to dismiss a suit for lack of standing, we "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The same standards apply when a party opposes a motion to intervene. Rule 24(c) requires an intervening party to submit a "pleading that sets out the claim or defense for which intervention is sought." MIEC did not submit a pleading asserting either a claim or defense, but it did submit a statement of interest explaining why it seeks intervention and requesting the right to participate in settlement discussions.

Appellees argue that MIEC's failure to submit a pleading is sufficient to deny its motion to intervene, but we conclude that the statement of interest satisfies Rule 24(c) because it provides sufficient notice to the court and the parties of MIEC's interests. Accord Beckman Indus. v. Int'l Ins. Co., 966 F.2d 470, 474 (9th Cir.1992); Spring Constr. Co., Inc. v. Harris, 614 F.2d 374, 376-77 (4th Cir.1980). MIEC also submitted affidavits from representatives of four member companies explaining their concerns about the impact of this lawsuit on their operations.

In the district court MIEC expressed concern that the District would increase sewer rates in order to pay civil penalties and to fund the improvements necessary to bring its system into compliance. MIEC also asserted interests in a reliable and viable sewer system and in the quality of the local environment. The district court determined that because MIEC sought to intervene as a neutral party it could not assert harm to its members' environmental interests and that it was a matter of "pure conjecture" whether the lawsuit would affect the reliability of the sewer system. It also concluded that sewer rates would increase only if (1) the District were found liable, (2) the court were to impose civil penalties or an injunction requiring significant infrastructure improvements, and (3) the District were to decide to pass on the costs of compliance to ratepayers rather than raising capital in some other way. The district court conceded that this sequence of events would not be impossible, but concluded that it was too speculative to create standing.

At the outset we note that MIEC cannot assert environmental injury on behalf of its members. An association has standing to assert the claims of its members if "the interests it seeks to protect are germane to the organization's purpose." Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). MIEC nowhere states that environmental protection or aesthetic and recreational interests are relevant to its members' purpose in joining together. Its brief indicates that MIEC's purpose is "to represent its industrial members' unique commercial interests in utility matters." Additionally, as the district court noted, MIEC's asserted neutrality as to whether the District violated the Clean Water Act is inconsistent with an assertion that the harm to regional rivers and streams injures its members.

MIEC next asserts an interest in the reliability and viability of the District's system, but it does not explain how any remedy that might be imposed in this case will threaten the reliability of the system. The complaint seeks to improve reliability in that it seeks to remedy the poor maintenance and insufficient capacity causing the permit violations which have occurred. In addition, MIEC shares its interest in the reliability of the system with all of the 1.4 million users, so it is not the kind of concrete, particularized interest that establishes standing. See Nolles v. State Comm. for the Reorg. of Sch. Dists., 524 F.3d 892, 900 (8th Cir.2008) (...

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