United States District Court, W.D. Washington, Seattle
CITIZENS FOR CLEAN AIR, a project of ALASKA COMMUNITY ACTION ON TOXICS; and SIERRA CLUB, Plaintiffs,
ANDREW WHEELER, in his official capacity as Acting Administrator of the U.S. Environmental Protection Agency; and CHRIS HLADICK, in his official capacity as Regional Administrator of the U.S. Environmental Protection Agency, Region 10, Defendants.
S. Zilly United States District Judge
MATTER comes before the Court on putative
Defendant-Intervenor State of Alaska's Motion to
Intervene, docket no. 22, and the parties' Fourth
Stipulated Motion to Hold Briefing Schedule in Abeyance,
docket no. 27. Having reviewed all papers filed in support
of, and in opposition to, the motions, the Court enters the
HEREBY ORDERED that the State of Alaska's
(“State”) Motion is GRANTED as a matter of
permissive intervention pursuant to Federal Rule of Civil
Procedure 24(b). The Court finds that (1) there is an
independent ground for jurisdiction under 28 U.S.C. §
1331; (2) the State's motion is timely; and (3) the
State's proposed defenses share common questions of law
and fact with the main action.
Andrew Wheeler and Chris Hladick (“EPA”) do not
oppose the State's motion. Plaintiffs oppose the motion
on the sole ground that it is untimely. “In determining
whether a motion for intervention is timely, [this Court
must] consider the following three factors: ‘(1) the
stage of the proceeding at which an applicant seeks to
intervene; (2) the prejudice to other parties; and (3) the
reason for and length of the delay.'” Smith v.
Marsh, 194 F.3d 1045, 1050 (9th Cir. 1999) (quoting
League of United Latin Am. Citizens v. Wilson, 131
F.3d 1297, 1302 (9th Cir. 1997)).
Stage of the Proceedings
the case has not yet proceeded to the consideration of the
merits. Plaintiffs and the EPA have agreed to a proposed
consent decree that would set an enforceable 18-month
deadline for the State to submit a complete serious area
State Improvement Plan (“SIP”), with specific
consequences if the State fails to meet the deadline.
See Proposed Consent Decree, Clean Air Act Citizen
Suit, 84 Fed. Reg. 25, 803 (June 4, 2019); 42 U.S.C. §
7509(a), (b). Although the EPA has answered the complaint and
has published a proposed consent decree for public comment,
little else has been filed and nothing has been adjudicated
in the instant action. The first factor therefore supports
the timeliness of the State's motion.
Prejudice to the Parties
the State's motion to intervene may cause some prejudice
to the existing parties in the form of additional delay in
the resolution of the matter. Specifically, Plaintiffs
suggest that air quality in Fairbanks may remain unhealthy
for a longer period if the State's intervention delays
the development of a compliant SIP or the imposition of a
Federal Improvement Plan (“FIP”) if the State
fails to develop a compliant SIP. Plaintiffs have brought
multiple lawsuits over the past decade against EPA and the
State regarding particulate matter pollution in the Fairbanks
area (see Citizens for Clean Air v. McCarthy, No.
16-1594 (W.D. Wash. Oct. 11, 2016); Citizens for Clean
Air v. McCarthy, No. 16-857 (W.D. Wash. June 9, 2016);
Citizens for Clean Air v. McCarthy, No. 14-610 (W.D.
Wash. April 24, 2014)), so in a sense this dispute is
long-running and further delays should be avoided. See
United States v. Alisal Water Corp., 370 F.3d 915, 923
(9th Cir. 2004) (affirming denial of intervention in heavily
litigated case because “intervention could complicate
and delay long standing efforts by the United States to
ensure safe drinking water”).
the delay resulting from the State's intervention, if
any, is likely to be short. Cf. League of United Latin
Am. Citizens, 131 F.3d at 1304 (upholding denial of
intervention where movant “waited twenty-seven months
before seeking to interject itself into the case . . . at a
time when the litigation was, by all accounts, beginning to
wind itself down, ” but also “recogniz[ing] . . .
that additional delay is not alone decisive (otherwise every
intervention motion would be denied out of hand because it
carried with it, almost be [sic] definition, the prospect of
prolonging the litigation”). Even under the terms of
the proposed consent decree, the State will have eighteen
months to produce a compliant SIP. On the other side of the
ledger, excluding the State is likely to result in prejudice
to the State's interests given the potential for fines
and other sanctions under the proposed consent decree.
See Alisal, 370 F.3d at 923 (observing that
“to the extent relevant, the prejudice to the [moving
party] from being denied intervention is ameliorated by the
fact that the district court” left other opportunities
for relief open to the moving party).
Reasons for the Delay
crucial date in assessing the timeliness of an intervention
motion is the date that the applicant should have been aware
[its] interest[s] would no longer be protected adequately by
the parties.” League of United Latin Am.
Citizens, 131 F.3d at 1304 (internal quotation marks
omitted). “[A]ny substantial lapse of time weighs
heavily against intervention.” Id. The State
has provided a reasonable explanation for the 6-month delay
in seeking intervention since this case was filed. The State
claims that it was not until June 4, 2019 when the proposed
consent decree was published that it “became clear . .
. that EPA would not stand behind the State's
position.” State's Reply, docket no. 26, at 5.
Plaintiffs counter that the State should have been on notice
that its interests might not be protected since October 2018
when Plaintiffs served a 60-day notice of intent to sue.
See Pltfs.' Opp., docket no. 25, at 7. Whether
the State was on notice at the time the proposed consent
decree was published or as far back as Plaintiffs'
pre-litigation notice letter, there has not been a
“substantial lapse of time” comparable to the
delays in other cases denying intervention. See,
e.g., Alisal, 370 F.3d at 922-23 (upholding
denial of motion where movant knew interests might be
adversely affected at time complaint was filed but waited
until the “remedies phase of a case that has been
litigated for four years” to seek intervention);
League of United Latin Am. Citizens, 131 F.3d at
1301, 1304 (affirming denial of motion filed twenty-seven
months after complaint, eighteen months after other groups
had successfully intervened); Orange County v. Air
California, 799 F.2d 535 (9th Cir. 1986) (affirming
denial of motion filed after filing of proposed settlement
“after five long years of litigation”). Here, the
delay was, at most, several months after the moving party was
arguably on notice of potential adverse impacts.
foregoing reasons, the Court ORDERS:
Defendant-Intervenor State of Alaska's Motion to
Intervene, docket no. 22, is GRANTED. The Clerk is DIRECTED