Citizens for Clean Air v. Regan

[4] UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] CITIZENS FOR CLEAN AIR, et al., Cause No. C22-1382RSL [8] Plaintiffs, ORDER GRANTING [9] v. ALASKA’S MOTION TO 10 INTERVENE MICHAEL S. REGAN, et al., [11] Defendants. [13] This matter comes before the Court on the “State of Alaska’s Motion to Intervene.” Dkt. [14] 15 # 11. Alaska argues that it has a right to intervene under Fed. R. Civ. P. 24(a)(2) or, in the [16] alternative, that it should be granted permissive intervention under Fed. R. Civ. P. 24(b)(1). [17] Plaintiffs do not object to intervention, but the United States insists that Alaska lacks a legally [18] 19 protected interest that justifies intervention as a matter of right. The United States takes no [20] position on Alaska’s request for permissive intervention. Having reviewed the memoranda and [21] exhibits submitted by the parties,1 the Court finds as follows: [22] 23 Federal Rule of Civil Procedure 24(a)(2) requires a court to grant a timely motion to [23] intervene if the movant “claims an interest relating to the property or transaction that is the [26] 1 This matter can be decided on the papers submitted. Alaska’s request for oral argument is [27] DENIED. [28] 1 subject of the action[] and is so situated that disposing of the action may as a practical matter [2] impair or impede the movant’s ability to protect its interest, unless existing parties adequately [3] represent that interest.” The parties agree that Alaska’s motion is timely. [4] 5 When analyzing whether the movant has “an interest relating to the property or [6] transaction that is the subject” of the litigation, the Ninth Circuit requires that the applicant [7] claim a “significantly protectable” interest. See, e.g., Oakland Bulk & Oversized Terminal, LLC [8] 9 v. City of Oakland, 960 F.3d 603 , 620 (9th Cir. 2020). A proposed intervenor has a significantly [10] protectable interest “if (1) it asserts an interest that is protected under some law, and (2) there is [11] a relationship between its legally protected interest and the plaintiff’s claims.” Kalbers v. United [12] 13 States Dep’t of Justice, 22 F.4th 816 , 827 (9th Cir. 2021) (citation omitted). “The interest test is [14] not a clear-cut or bright-line rule, because no specific legal or equitable interest need be [15] established. . . . Instead, the ‘interest’ test directs courts to make a practical, threshold inquiry [16] 17 and is primarily a practical guide to disposing of lawsuits by involving as many apparently [18] concerned persons as is compatible with efficiency and due process.” U.S. v. City of Los [19] Angeles, 288 F.3d 391 , 398 (9th Cir. 2002) (internal quotation marks, citations, and alterations [20] 21 omitted). Where the proposed intervenor is the intended beneficiary of an Act of Congress, it [22] may have a “significant protectable interest” even if Congress did not see fit to create a private [23] cause of action or other enforceable right in its favor. See California ex rel. Lockyer v. U.S., 450 [23] 25 F.3d 436, 441 (9th Cir. 2006); County of Fresno v. Andrus, 662 F.2d 436, 437-38 (9th Cir. [26] 1980). The relationship element of Rule 24(a)(2) “is met if the resolution of the plaintiff’s [28] 1 claims actually will affect the applicant.” Id. While an applicant seeking to intervene has the [2] burden of establishing the Rule 24(a)(2) elements, “the requirements are broadly interpreted in [3] favor of intervention.” Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893 , [4] 5 897 (9th Cir. 2011) (citation omitted). [6] Plaintiffs bring this action under the Clean Air Act (“CAA”) to compel the U.S. [7] Environmental Protection Agency (“EPA”) to approve or disapprove the state implementation [8] 9 plan (“SIP”) developed by the State of Alaska for the Fairbanks North Star Borough fine [10] particulate matter (PM-2.5) nonattainment area. Plaintiffs allege that the EPA had a statutory, [11] nondiscretionary duty to render its decision by June 15, 2022, and that it failed to do so. For its [12] 13 part, the EPA is willing to admit that it failed to approve or disapprove (or to approve in part and [14] disapprove in part) the SIP by June 15, 2022, and that it still has not done so. Dkt. # 9 at ¶ 48. It [15] is not, however, willing to admit that it has failed to perform a mandatory duty. Id. at ¶ 52. [16] 17 Alaska is not, as the EPA would have it, simply arguing that the downstream effects of a [18] ruling compelling the EPA to issue its decision would adversely impact Alaska’s operations [19] and/or limit its ability to regulate air quality within the state. Rather, although not clearly stated, [20] 21 it appears that Alaska seeks an opportunity to argue that, in the circumstances presented here [22] where technical complications arising from the application of an outdated modeling program to [23] a subarctic environment has made it impossible to demonstrate attainment, the EPA was not [23] 25 required to issue a decision by June 15, 2022, or that such a requirement should be excused. If [26] Alaska is right and the CAA did not mandate a decision by June 15, 2022 – an issue the Court [28] 1 declines to decide in the context of this motion to intervene – Alaska would have a statutory [2] interest in obtaining a correct ruling on the issue to preserve the current status of the planning [3] effort wherein the EPA is considering Alaska’s arguments and the adequacy of the SIP. Alaska [4] 5 would have no other opportunity to impact the schedule on which the EPA issues its decision, [6] and there is no indication that the EPA intends to make the arguments Alaska has raised here. [7] The Court finds that Alaska has satisfied the elements of Rule 24(a)(2). It has a [8] 9 significantly protectable interest in obtaining a correct determination regarding the deadline by [10] which the EPA must approve or disapprove its SIP, its exclusion from this litigation would [11] impair or impede its ability to protect that interest, and it does not appear that the EPA is [12] 13 inclined to pursue the arguments Alaska has raised. Because intervention as a matter of right is [14] appropriate, the Court need not evaluate the request for permissive intervention. [16] 17 For all of the foregoing reasons, Alaska’s motion to intervene as a defendant in this [18] matter (Dkt. # 11) is GRANTED. [20] 21 Dated this 9th day of January, 2023. [23] Robert S. Lasnik 23 United States District Judge