USA v. NYC and NYC Envir'l Protection
| Decision Date | 14 July 1999 |
| Docket Number | Docket Nos. 98-6146 |
| Citation | 198 F.3d 360 |
| Parties | (2nd Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, STATE OF NEW YORK and BARBARA A. DEBUONO, M.D., as COMMISSIONER of the NEW YORK STATE DEPARTMENT OF HEALTH, Plaintiffs-Intervenors-Appellees, v. CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants-Appellees, CROTON WATERSHED CLEAN WATER COALITION, INC., HDFC COALITION, MARIAN ROSE, JESSE DAVIDSON, DAVID FERGUSON, MARIE RUNYON, FRANCIS A. CHAPMAN, MICKIE GROVER, PAUL MOSKOWITZ, EDITH T. KEASBEY, DART WESTPHAL, HOWARD JACKSON, BRIAN JACKSON, TINA ARGENTI, KAREN ARGENTI, DOROTHY VAUGHN, HELEN C. REED, STEVEN B. KAPLAN, AARON BOCK, and DARNLEY E. BECKLES, JR., Proposed-Defendants-Intervenors-Appellants. (L), 98-6162(CON) August Term 1998 Argued: |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the judgment of the United States District Court for the Eastern District of New York (Nina Gershon, District Judge), denying a motion by proposed-defendants-intervenors-appellants for intervention as of right and/or permissive intervention pursuant to Federal Rule of Civil Procedure 24.
Affirmed.
DEBORAH B. ZWANY, Assistant United States Attorney (Zachary W. Carter, United States Attorney, Varuni Nelson, Assistant United States Attorney, on the brief), Eastern District of New York, Brooklyn, NY Attorney for Plaintiff-Appellee
GORDON J. JOHNSON, Attorney General's Office, State of New York, New York, NY Attorney for Plaintiffs-Intervenors-Appellees
STUART D. SMITH, of counsel (Michael D. Hess, Corporation Counsel, Barry P. Schwartz, of counsel, on the brief), City of New York, New York, NY Attorney for Defendants-Appellees
JOHN C. KLOTZ New York, NY Attorney for Proposed-Defendant-Intervenor- Appellant Croton Watershed Clean Water Coalition, Inc.
Before: WALKER, CABRANES, and SACK, Circuit Judges.
Appellants Croton Watershed Clean Water Coalition et al. ("Coalition") sought to intervene as defendants in this action brought by the United States to enforce the obligations of New York City ("City") under federal law to ensure the safety of its drinking water. The Coalition contends that the district judge erred in denying its motion to intervene under Federal Rule of Civil Procedure 24. We disagree and thus affirm the district court's denial of the motion.
The history of this case begins with a statutory and regulatory scheme enacted in the 1980s. In 1989, pursuant to a 1986 amendment to the Safe Drinking Water Act ("SDWA"), 42 U.S.C. 300g-1 et seq., the United States Environmental Protection Agency ("EPA") promulgated the Surface Water Treatment Rule ("SWTR"), 40 C.F.R. 141.70-75. These two provisions effectively mandated filtration for public water systems using surface water, with some limited exceptions.
The dispute that underlies this case has centered on the Croton watershed, which provides drinking water for approximately 700,000 consumers in New York City and its environs. In 1991, a City report concluded that, although water quality in the Croton watershed was currently high enough to avoid the federal filtration mandate, this would not always be true and filtration would be required in the future. On October 30, 1992, the City and the New York State Department of Health ("DOH") entered into a stipulation in which the City agreed to provide filtration and disinfection of the Croton watershed. On January 13, 1993, the EPA determined that the SWTR required the City to pursue filtration and disinfection. Although the EPA stated that the City could request a public hearing on the determination, the City never requested one. Despite the stipulation and the EPA determination, the City never chose a site and took no further steps to advance the project. The City did provide regular public notification of its violation of federal and state environmental laws and indicated its intention to build a filtration plant.
On April 24, 1997, the United States brought the present action against the City and its Department of Environmental Protection ("DEP"). The complaint alleged that the City's failure to construct a facility to provide filtration treatment for the Croton watershed violated the SDWA and the SWTR. The United States sought to enjoin future violations, compel compliance with the 1993 EPA determination, and assess civil penalties for violations of the SDWA and SWTR.
Soon thereafter, New York State ("State") was permitted to intervene as a plaintiff "on behalf of itself and as parens patriae, trustee, guardian and representative on behalf of all residents and citizens of New York, particularly those individuals who obtain their drinking water from the Croton system." The State alleged that the City was violating state health requirements with respect to the Croton watershed, and sought injunctive relief requiring the City to meet its obligations under the 1992 stipulation.
On May 2, 1997, the City proposed to settle the case, and the district court referred the parties to Magistrate Judge Gold for settlement discussions.
By letter dated June 6, 1997, the Coalition informed the district court that it desired to intervene as a defendant. In an affirmation by its attorney, the Coalition represented itself to the district court as "a membership corporation that includes consumers of drinking water from the Croton watershed including people of color from New York City, water rate payers, taxpayers and residents of New York City and the watershed counties of Westchester and Putnam, and many other individuals interested in the preservation of water quality in the Croton Watershed." The Coalition's purpose in intervening was to prevent any filtration of the Croton water supply. It argued, among other things, that: (1) the procedure leading to the decision to order filtration was deficient; and (2) the Coalition's members would be harmed both as users of water and as ratepayers because "filtration . . . is [both] dangerous to consumers [and] fiscally wasteful."
On May 6, 1998, the district court, in a written opinion, denied the Coalition's motion to intervene. Applying the standards for intervention as of right under Rule 24(a), the district court concluded that appellants' interests were not relevant to this action. 1. According to the district court, "the Coalition does not claim that the interests of its membership are at stake in the current action so much as it asserts that those interests were illegitimately disregarded in the course of the administrative determinations that form the background on this action." United States v. City of New York, 179 F.R.D. 373, 379 (E.D.N.Y. 1998). The district court also denied permissive intervention to appellants. See id. at 380-81.
On May 27, 1998, the existing parties filed a consent decree with the district court. The consent decree was available for public comment for 30 days thereafter. By opinion dated November 24, 1998, the district court determined that the decree was proper and ordered that it be entered. See United States v. City of New York, 30 F. Supp. 2d 325, 331 (E.D.N.Y. 1998). This appeal, which concerns solely the district court's denial of appellants' motion to intervene, followed. We affirm.
It is now well-settled that we review a district court's order denying intervention for abuse of discretion. See Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996); United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 990-91 (2d Cir. 1984). "[T]he great variety of factual circumstances in which intervention motions must be decided, the necessity of having the 'feel of the case' in deciding these motions . . . particularly in government enforcement actions . . . support an abuse of discretion standard of review." Hooker Chems., 749 F.2d at 991.
Rule 24 of the Federal Rules of Civil Procedure provides for both (1) intervention of right and (2) permissive intervention. Since appellants moved on both grounds and have appealed on both grounds, we will examine each in turn.
The Federal Rules provide for intervention of right upon timely application:
(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.
Appellants argued below that the "private attorney general" provision of the SDWA, 42 U.S.C. 300j-8, conferred on them an unconditional right to intervene under Rule 24(a)(1). Although they appear to have abandoned this claim on appeal, we will discuss it briefly. Section 300j-8 authorizes private suits for enforcement of the SDWA, and authorizes intervention as of right by private parties in suits that could have been brought by the parties but for the fact that they are being pursued by the United States or a state. See 42 U.S.C. 300j-8(b)(1)(B). However, as this court has stated, the legislative history of the SDWA indicates that it was intended "to limit private suits to supplemental enforcement of administratively established criteria, and to prevent individuals from invoking the power of the courts to set as well as enforce standards." Hooker Chems., 749 F.2d at 980. Under this standard, the Coalition could not properly use the private attorney general provisions of the SWDA to pursue its claims. The Coalition does not seek to enforce administratively established criteria; it seeks to block such enforcement. Thus, the Coalition has no statutorily conferred right to intervene under Rule 24(a)(1).
Appellants' primary contention on appeal is that the district court improperly...
To continue reading
Request your trial
- Crawford v. Electric Boat Corp.
-
State Of N.Y. v. Atl. States Marine Fisheries Comm'n
... ... years, the Atlantic States Marine Fisheries Commission (“ASMFC” or the “Commission”) has endeavored to promote the utilization and protection of the fisheries of the Atlantic seaboard. The Commission is the product of a congressionally approved interstate compact authorized by Article I, § ... ...
-
In Re Community Bank Of Northern Virginia
... ... § 1601 et seq. (“TILA”), and the Home Ownership and Equity Protection Act (“HOEPA”), id. § 1639. The Objectors contend that the failure to do so renders the named plaintiffs and class counsel inadequate class ... ...
-
Natural Res. Def. Council Inc. v. Ppg Indus. Inc.
... ... , including the Garfield Site, became the subject of litigation in New Jersey state court when the New Jersey Department of Environmental Protection (DEP) filed an action against PPG, and other chrome production facility operators, in 2005. 2 (Def.'s 56.1 5-6.) The DEP sought remediation of the ... ...