1 The Honorable Barbara J. Rothstein
5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 Case No. 21-cv-1637-BJR NORTHWEST ENVIRONMENTAL 8 ADVOCATES, ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO 9 Plaintiff, INTERVENE
10 v.
11 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 12 Defendants. 13
14 I. INTRODUCTION 15 This matter comes before the Court on the unopposed joint motion to intervene by the City 16 of Tacoma and King County (collectively, “Permittees”), Dkt. No. 29. Permittees move to intervene 17 as defendants in this action as of right, and alternatively permissively, pursuant to Federal Rule of 18 Civil Procedure 24. Having fully considered the materials and the relevant legal authorities, the 19 Court grants Permittees’ joint motion to intervene. 20 II. BACKGROUND 21 In 2021, Northwest Environmental Advocates (“NEA”) filed its complaint in this action. In 22 2022, after the parties filed several joint status reports indicating that they were progressing toward 23 a settlement agreement, the Court administratively closed the case. On July 1, 2024, following
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 failed settlement negotiations, the Court granted a motion to reopen the case. A week later, NEA 2 filed an amended complaint, Dkt. No. 24, alleging a single count arising under the Clean Water Act 3 (“CWA”) against the United States Environmental Protection Agency (“EPA”); Michael Regan, 4 Administrator of the EPA; and Casey Sixkiller, EPA Region 10 Regional Administrator 5 (collectively, “Defendants”). 6 NEA alleges that the Washington Department of Ecology (“Ecology”) has continually 7 issued National Pollutant Discharge Elimination System (“NPDES”) permits to sewage treatment 8 plants in the Puget Sound area, even though the permits contain insufficient limits on the amount 9 of pollutants to be discharged into the Sound.1 Amend. Compl. at ¶ 6. NEA asserts that the CWA 10 requires the EPA and Ecology to develop Total Maximum Daily Loads (“TDML”) to limit 11 pollutants in the Puget Sound.2 Id. at ¶¶ 8-9, 36, 75. NEA alleges that, rather than develop TDMLs,
12 Ecology has chosen to issue a “TDML alternative,” which the EPA has approved in at least one 13 instance. Id. at ¶ 8. NEA asserts that the planned “TDML alternative” means that Ecology and the 14 EPA will not take the regulatory actions necessary to comply with the CWA. Id. at ¶¶ 9-10. 15 The City of Tacoma’s wastewater utility operates two municipal wastewater treatment 16 plants within Tacoma that discharge into the Puget Sound. Joint Mot. to Intervene at 2. Those 17 treatment plants have NPDES permits. Id. King County operates five municipal domestic 18 19 1 Under the Clean Water Act, the “discharge of any pollutant” from a “point source” into 20 navigable waters of the United States is unlawful unless the discharge is made according to the terms of an NPDES permit obtained from either the EPA or from an authorized state agency. 33 21 U.S.C. §§ 1311(a), 1342; see also Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993). 22 2 A TMDL is the total daily loading of a pollutant for a particular waterbody or segment. 23 See 40 C.F.R. § 130.2(i).
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 wastewater treatment plants, including four that discharge water into the Puget Sound pursuant to 2 an NPDES permit. Id. 3 III. LEGAL STANDARD 4 Intervention as of right is governed by Rule 24(a)(2). When analyzing a motion to intervene 5 as of right, courts apply a four-part test: 6 (1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the 7 action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the existing parties may not 8 adequately represent the applicant’s interest.
9 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (quoting 10 Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006)). On a motion to intervene, a district court 11 must accept as true the nonconclusory allegations of the motion and proposed answer. Sw. Ctr. for 12 Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001). The Ninth Circuit construes Rule 13 24(a) liberally in favor of potential intervenors. California ex rel. Lockyer v. United States, 450 14 F.3d 436, 440 (9th Cir. 2006). The party seeking to intervene bears the burden of showing that all 15 the requirements for intervention have been met. United States v. Alisal Water Corp., 370 F.3d 915, 16 919 (9th Cir. 2004). 17 Where intervention as of right is unavailable, a party may still seek permissive intervention. 18 Under Rule 24(b), “the court may permit anyone to intervene who . . . has a claim or defense that 19 shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The 20 Rule also requires the court to consider “whether the intervention will unduly delay or prejudice 21 the adjudication of the original parties’ rights.” Id. R. 24(b)(3). As with Rule 24(a) intervention, the 22 court should interpret the requirements broadly in favor of intervention. United States v. Aerojet, 23 606 F.3d 1142, 1148 (9th Cir. 2010).
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 IV. DISCUSSION 2 A. Permittees Have Satisfied the Requirements to Intervene as of Right 3 Permittees’ unopposed motion satisfies the four-part test for intervention as of right. First, 4 although NEA initiated this action in 2021, the litigation is at an early stage. See Orange Cnty. v. 5 Air Cal., 799 F.2d 535, 537 (9th Cir. 1986) (providing that, in determining whether a motion for 6 intervention is timely, courts consider: “(1) the stage of the proceeding at which an applicant seeks 7 to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay”). 8 Notably, Defendants did not file an answer until August 2024, no discovery has taken place, and 9 no dispositive motions have been filed. Therefore, Permittees’ intervention is unlikely to prejudice 10 the other parties. See id. 11 Second, Permittees have a significant protectable interest in this action because it may affect
12 the terms of their NPDES permits. See Sierra Club v. United States EPA, 995 F.2d 1478, 1482 (9th 13 Cir. 1993) (concluding that, as an NPDES permit-holder, the City of Phoenix had the requisite 14 protectable interest to intervene in an action brought pursuant to the CWA), overruled in part on 15 other grounds by Wilderness Soc’y v. United States Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
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1 The Honorable Barbara J. Rothstein
5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 Case No. 21-cv-1637-BJR NORTHWEST ENVIRONMENTAL 8 ADVOCATES, ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO 9 Plaintiff, INTERVENE
10 v.
11 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 12 Defendants. 13
14 I. INTRODUCTION 15 This matter comes before the Court on the unopposed joint motion to intervene by the City 16 of Tacoma and King County (collectively, “Permittees”), Dkt. No. 29. Permittees move to intervene 17 as defendants in this action as of right, and alternatively permissively, pursuant to Federal Rule of 18 Civil Procedure 24. Having fully considered the materials and the relevant legal authorities, the 19 Court grants Permittees’ joint motion to intervene. 20 II. BACKGROUND 21 In 2021, Northwest Environmental Advocates (“NEA”) filed its complaint in this action. In 22 2022, after the parties filed several joint status reports indicating that they were progressing toward 23 a settlement agreement, the Court administratively closed the case. On July 1, 2024, following
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 failed settlement negotiations, the Court granted a motion to reopen the case. A week later, NEA 2 filed an amended complaint, Dkt. No. 24, alleging a single count arising under the Clean Water Act 3 (“CWA”) against the United States Environmental Protection Agency (“EPA”); Michael Regan, 4 Administrator of the EPA; and Casey Sixkiller, EPA Region 10 Regional Administrator 5 (collectively, “Defendants”). 6 NEA alleges that the Washington Department of Ecology (“Ecology”) has continually 7 issued National Pollutant Discharge Elimination System (“NPDES”) permits to sewage treatment 8 plants in the Puget Sound area, even though the permits contain insufficient limits on the amount 9 of pollutants to be discharged into the Sound.1 Amend. Compl. at ¶ 6. NEA asserts that the CWA 10 requires the EPA and Ecology to develop Total Maximum Daily Loads (“TDML”) to limit 11 pollutants in the Puget Sound.2 Id. at ¶¶ 8-9, 36, 75. NEA alleges that, rather than develop TDMLs,
12 Ecology has chosen to issue a “TDML alternative,” which the EPA has approved in at least one 13 instance. Id. at ¶ 8. NEA asserts that the planned “TDML alternative” means that Ecology and the 14 EPA will not take the regulatory actions necessary to comply with the CWA. Id. at ¶¶ 9-10. 15 The City of Tacoma’s wastewater utility operates two municipal wastewater treatment 16 plants within Tacoma that discharge into the Puget Sound. Joint Mot. to Intervene at 2. Those 17 treatment plants have NPDES permits. Id. King County operates five municipal domestic 18 19 1 Under the Clean Water Act, the “discharge of any pollutant” from a “point source” into 20 navigable waters of the United States is unlawful unless the discharge is made according to the terms of an NPDES permit obtained from either the EPA or from an authorized state agency. 33 21 U.S.C. §§ 1311(a), 1342; see also Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993). 22 2 A TMDL is the total daily loading of a pollutant for a particular waterbody or segment. 23 See 40 C.F.R. § 130.2(i).
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 wastewater treatment plants, including four that discharge water into the Puget Sound pursuant to 2 an NPDES permit. Id. 3 III. LEGAL STANDARD 4 Intervention as of right is governed by Rule 24(a)(2). When analyzing a motion to intervene 5 as of right, courts apply a four-part test: 6 (1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the 7 action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the existing parties may not 8 adequately represent the applicant’s interest.
9 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (quoting 10 Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006)). On a motion to intervene, a district court 11 must accept as true the nonconclusory allegations of the motion and proposed answer. Sw. Ctr. for 12 Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001). The Ninth Circuit construes Rule 13 24(a) liberally in favor of potential intervenors. California ex rel. Lockyer v. United States, 450 14 F.3d 436, 440 (9th Cir. 2006). The party seeking to intervene bears the burden of showing that all 15 the requirements for intervention have been met. United States v. Alisal Water Corp., 370 F.3d 915, 16 919 (9th Cir. 2004). 17 Where intervention as of right is unavailable, a party may still seek permissive intervention. 18 Under Rule 24(b), “the court may permit anyone to intervene who . . . has a claim or defense that 19 shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The 20 Rule also requires the court to consider “whether the intervention will unduly delay or prejudice 21 the adjudication of the original parties’ rights.” Id. R. 24(b)(3). As with Rule 24(a) intervention, the 22 court should interpret the requirements broadly in favor of intervention. United States v. Aerojet, 23 606 F.3d 1142, 1148 (9th Cir. 2010).
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 IV. DISCUSSION 2 A. Permittees Have Satisfied the Requirements to Intervene as of Right 3 Permittees’ unopposed motion satisfies the four-part test for intervention as of right. First, 4 although NEA initiated this action in 2021, the litigation is at an early stage. See Orange Cnty. v. 5 Air Cal., 799 F.2d 535, 537 (9th Cir. 1986) (providing that, in determining whether a motion for 6 intervention is timely, courts consider: “(1) the stage of the proceeding at which an applicant seeks 7 to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay”). 8 Notably, Defendants did not file an answer until August 2024, no discovery has taken place, and 9 no dispositive motions have been filed. Therefore, Permittees’ intervention is unlikely to prejudice 10 the other parties. See id. 11 Second, Permittees have a significant protectable interest in this action because it may affect
12 the terms of their NPDES permits. See Sierra Club v. United States EPA, 995 F.2d 1478, 1482 (9th 13 Cir. 1993) (concluding that, as an NPDES permit-holder, the City of Phoenix had the requisite 14 protectable interest to intervene in an action brought pursuant to the CWA), overruled in part on 15 other grounds by Wilderness Soc’y v. United States Forest Serv., 630 F.3d 1173 (9th Cir. 2011). 16 Third, the stare decisis effect of the disposition of this action may constrain Permittees’ ability to 17 protect their interests in subsequent proceedings. See id. at 1486. 18 Finally, the interests of Permittees are clearly adverse to those of NEA and have the potential 19 to diverge from those of Defendants. See California v. Tahoe Reg’l Plan. Agency, 792 F.2d 775, 20 778 (9th Cir. 1986) (“In determining adequacy of representation, we consider whether the interest 21 of a present party is such that it will undoubtedly make all the intervenor’s arguments; whether the
22 present party is capable and willing to make such arguments; and whether the intervenor would 23 offer any necessary elements to the proceedings that other parties would neglect.”). It is unclear at
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE 1 this stage in the proceedings whether Defendants will make all of Permittees’ arguments. See id. 2 However, Defendants, as a federal agency and administrators of that agency, must represent a broad 3 public interest that may diverge from Permittees’ narrower interests in “facility operations, 4 affordability and associated permits.” Joint Mot. to Intervene at 12; see Forest Conservation 5 Council v. United States Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995), overruled in part on 6 other grounds by Wilderness Soc’y, 630 F.3d 1173. Therefore, Permittees have met their minimal 7 burden of demonstrating that representation of their interests by existing parties may be inadequate. 8 See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972); Sagebrush Rebellion, Inc. v. 9 Watt, 713 F.2d 525, 528 (9th Cir. 1983). 10 Accordingly, Permittees have satisfied the requirements to intervene as of right.3 11 V. CONCLUSION
12 For the foregoing reasons, 13 1. Permittees’ joint motion to intervene (Dkt. No. 29) is GRANTED; and 14 2. All parties are DIRECTED to adhere to the current case schedule (Dkt. No. 34) and 15 provide a Combined Joint Proposed Case Plan consistent with that schedule. 16 DATED this 18th day of November 2024. 17 A 18 B arbara Jacobs Rothstein 19 U.S. District Court Judge 20 21 22 3 Because the Court agrees that Permittees may intervene as of right, the Court does not 23 address Permittees’ alternative argument for permissive intervention.
24 ORDER GRANTING TACOMA AND KING COUNTY JOINT MOTION TO INTERVENE