U.S. v. Texas Eastern Transmission Corp., 89-6307

• Decision Date: 13 February 1991
• Docket Number: No. 89-6307,89-6307
• Citation: 923 F.2d 410
• Parties: , 18 Fed.R.Serv.3d 1239 UNITED STATES of America, Plaintiff-Appellee, v. TEXAS EASTERN TRANSMISSION CORPORATION, d/b/a Texas Eastern Gas Pipeline Company, Defendant-Appellee, v. The COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Movant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 410

923 F.2d 410

32 ERC 1822, 18 Fed.R.Serv.3d 1239

UNITED STATES of America, Plaintiff-Appellee, v. TEXAS EASTERN TRANSMISSION CORPORATION, d/b/a Texas Eastern

Gas Pipeline Company, Defendant-Appellee, v. The COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF

ENVIRONMENTAL RESOURCES, Movant-Appellant.

No. 89-6307.

United States Court of Appeals, Fifth Circuit.

Feb. 13, 1991.

Carl B. Schultz, David Wersan, Central Region Litigation, Martin H. Sokolow, Jr., Harrisburg, Pa., for movant-appellant.

James W. McCartney, Carol E. Dinkins, Arthur E. Murphy, Vinson & Elkins, Bolivar C. Andrews, Vice President Law, Houston, Tex., for defendant-appellee.

Frank A. Conforti, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., Robert L. Klarquist, David C. Shilton, Land & Natural Resource Div. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, GARZA and DAVIS, Circuit Judges.

CLARK, Chief Judge:

The only issue in this appeal is whether the Commonwealth of Pennsylvania (Pennsylvania) should have been allowed to intervene in a civil action brought by the Environmental Protection Agency (EPA) against Texas Eastern Transmission Corporation (Texas Eastern). The district court held that Pennsylvania was not entitled to intervention of right under Fed.R.Civ.P. 24(a) or permissive intervention under Fed.R.Civ.P. 24(b). We affirm the denial of intervention of right and dismiss the appeal of the denial of permissive intervention.

I. FACTS AND PROCEEDINGS BELOW

The facts in this case are undisputed. Texas Eastern operates an interstate natural gas pipeline system that extends over 9,600 miles through 16 states from Texas to New York. The pipeline system passes through Pennsylvania. In 1985 or 1986, the EPA learned that Texas Eastern was allowing polychlorinated biphenyls (PCBs) to escape into the environment at 89 sites in 14 states along the pipeline system. Nineteen of these sites were in Pennsylvania. Accordingly, the EPA commenced an investigation and entered into discussions with Texas Eastern concerning appropriate responses to the contamination. In November of 1987, the EPA announced that it had reached an agreement in principle with Texas Eastern regarding a cleanup of the sites.

On June 6, 1988, the EPA filed a complaint in the district court alleging that Texas Eastern had violated the Toxic Substances Control Act (TSCA), 15 U.S.C. Sec. 2601 et seq., the EPA's regulations implementing the TSCA, Subtitle C of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Sec. 6921 et seq., and the EPA's regulations implementing the RCRA. The EPA also sought recovery under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sec. 9607. Along with the complaint, the EPA filed a proposed consent decree which the EPA and Texas Eastern had negotiated. Two days later, the EPA moved for a stay of the district court proceedings to allow for notice and comment on the proposed consent decree. The district court granted the motion and stayed the proceedings for 60 days. Pennsylvania filed comments on the decree.

After the EPA and Texas Eastern submitted the proposed consent decree and before the stay expired, Pennsylvania and several other states also filed motions to intervene. The United States opposed the motions, and Texas Eastern opposed intervention of right, but did not oppose permissive intervention subject to certain conditions. The district court allowed all parties to fully brief and argue the intervention issues. On October 11, 1989, the district court entered a memorandum opinion and order denying all intervention motions. The district court also approved and entered the consent decree. Pennsylvania now appeals the district court's denial of intervention. The other states have not appealed.

II. DISCUSSION

A. General principles--Rule 24.

Rule 24 represents "an accommodation between two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending." Smuck v. Hobson, 408 F.2d 175, 179 (D.C.Cir.1969) (en banc). However, intervention may be sought in a wide variety of situations involving unique facts and procedural postures. See generally, Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 722-23 (1968). Because Rule 24 attempts to address all of these situations, the facts and procedural posture of each case are important, and it is often true that "general rules and past decisions cannot provide uniformly dependable guides." Smuck, 408 F.2d at 179.

In today's case, the EPA and Texas Eastern conducted extensive negotiations which culminated in a comprehensive settlement prior to the filing of the complaint. Pennsylvania has its own statutory enforcement scheme through which it protects its environment and its citizens according to its own judgment. In fact, Pennsylvania has already undertaken preliminary enforcement efforts against Texas Eastern under its own laws. These considerations form the background against which we analyze Rule 24.

B. Intervention of right.

Intervention of right is governed by Fed.R.Civ.P. 24(a) which provides:

Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (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.

Pennsylvania does not claim that a statute confers an unconditional right to intervene under subpart (1). Our analysis therefore proceeds under subpart (2).

The de novo standard governs review of district court rulings on all Rule 24(a) requirements except for timing. See Mothersill D.I.S.C. Corp. v. Petroleos Mexicanos, S.A., 831 F.2d 59, 62 (5th Cir.1987) (per curiam). Timeliness is not involved here.

Fifth Circuit precedent establishes that "the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application.... [and] intervention of right must be measured by a practical rather than technical yardstick." United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 841 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). This consideration is important because Pennsylvania's arguments in support of intervention of right rest on a technical rather than a practical application of Rule 24(a)(2).

In order to show entitlement to intervention of right under Rule 24(a)(2), Pennsylvania must demonstrate an interest in the subject matter of this action and that its disposition may realistically impair that interest. Pennsylvania claims an interest in protecting its environment and its citizens through enforcement of its own environmental laws. Pennsylvania also suggests that its environmental laws may require Texas Eastern to undertake additional cleanup efforts beyond those mandated by the consent decree. Pennsylvania argues that entry of the consent decree may impair its interest in protecting its environment and its citizens in three ways: (1) the consent decree may adversely affect Pennsylvania's enforcement efforts because of the principles of res judicata and stare decisis, (2) the consent decree may preempt Pennsylvania laws, and (3) the consent decree may cause Pennsylvania to have to litigate the preemption issue in a subsequent action against Texas Eastern. However, Pennsylvania has failed to demonstrate the requisite practical impairment.

Pennsylvania points out that the amended Rule 24(a) no longer requires a showing that the applicant will be bound by the disposition of the action and that the current practical impairment standard represents a liberalization of the pre-1966 version of the rule. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1903 (2d ed. 1986). Nevertheless, "[l]iberality 'does not equate with rights of indiscriminate intervention' and the rule continues to set bounds that must be observed." See id. Sec. 1904 at 239 (footnote omitted) (quoting Stadin v. Union Elec. Co., 309 F.2d 912, 918 (8th Cir.1962), cert. denied, 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415 (1963)).

1) Res judicata and stare decisis.

Pennsylvania maintains that the consent decree's cleanup provisions may have a res judicata or stare decisis effect and that this may impair Pennsylvania's ability to protect its environment and citizens through the enforcement of Pennsylvania laws. Pennsylvania's brief states:

In view of the fact that the Consent Decree represents a complicated and extensive agreement regarding the Texas Eastern sites, entered into by the federal government agency charged with protecting the Nation's environment, a judge might conclude that Texas Eastern should not be required to undertake characterization activities in excess of those required by the Consent Decree, or that Texas Eastern should not be required to pay civil penalties or oversight costs in excess of those required by the Consent Decree.

Appellant's brief at 29-30.

Pennsylvania's argument is without merit. First, Pennsylvania is not a party to this action. Pennsylvania has failed to explain how a settlement can have adverse res judicata effects on a nonparty. Pennsylvania has also failed to explain how this consent decree could have a stare decisis effect on Pennsylvania's enforcement efforts. See Allegheny-Ludlum, 517 F.2d at 845. Second, the consent decree contains ample protections for...