Citizens for Clean Air v. Regan

• Court: District Court, W.D. Washington
• Decided: January 9, 2023
• Docket: 2:22-cv-01382
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 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. 12 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 25 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 27 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 27 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. 15

16 17 For all of the foregoing reasons, Alaska’s motion to intervene as a defendant in this 18 matter (Dkt. # 11) is GRANTED. 19

20 21 Dated this 9th day of January, 2023.

23 Robert S. Lasnik 23 United States District Judge 25 26 27 28