State of Washington v. United States Environmental Protection Agency

• Court: District Court, W.D. Washington
• Decided: April 23, 2020
• Docket: 2:19-cv-00884
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9

10 STATE OF WASHINGTON, Civil Action No. 2:19-cv-00884-RAJ

ORDER GRANTING MOTION TO 11 Plaintiff, INTERVENE AS DEFENDANTS

12 SAUK-SUIATTLE INDIAN TRIBE and QUINAULT INDIAN NATION 13

14 Intervenor-Plaintiffs,

15 v.

16 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and 17 ANDREW WHEELER, Administrator, United States Environmental Protection 18 Agency, 19 Defendants, 20 NORTHWEST PULP & PAPER 21 ASSOCIATION, AMERICAN FOREST & PAPER ASSOCIATION, WESTERN 22 WOOD PRESERVERS INSTITUTE, TREATED WOOD COUNCIL, and 23 WASHINGTON FARM BUREAU,

24 Applicant Intervenor-Defendants. 25 26 1 This matter is before the Court on the Northwest Pulp and Paper Association, 2 American Forest & Paper Association, Western Wood Preservers Institute, Treated Wood 3 Council, and the Washington Farm Bureau’s (collectively “Associations”) motion to 4 intervene as defendants. Dkt. # 17. Plaintiff, the State of Washington (“Washington” or 5 “Plaintiff”) opposes the motion. Dkt. # 20. Defendants the United States Environmental 6 Protection Agency (“EPA”) and Andrew Wheeler the Administrator of the EPA 7 (collectively, “Defendants”), have not responded to the motion. The Associations 8 represent Defendants take no position on the motion. Dkt. # 17 at 2. For the following 9 reasons, the Court GRANTS the motion. 10 I. BACKGROUND 11 The Clean Water Act (“CWA”) assigns states the primary authority to enact water 12 quality standards that comply with the CWA. See 33 U.S.C. § 1313. Once adopted by the 13 state, EPA reviews the standards to ensure they comply with the CWA and approve or 14 disapprove the standards. 33 U.S.C. § 1313(c)(2)(A). If a state submits new or revised 15 criteria to EPA that do not meet CWA requirements, EPA may publish new proposed 16 regulations within 90 days of the state submitting the unsatisfactory regulations. 33 17 U.S.C. § 1313(c)(4)(A). EPA can also revise a state’s existing water quality standards if 18 it determines “that a revised or new standard is necessary to meet the requirements of” 19 the CWA (necessity determination). 33 U.S.C. § 1313(c)(4)(B). 20 At issue in this case is Washington’s water quality standards. In 2016 (in response 21 to an EPA necessity determination), Washington submitted human health water quality 22 criteria to EPA for review. On November 2016, EPA partially approved and disapproved 23 Washington’s proposed criteria. See 81 Fed. Reg. 85417 (Nov. 28, 2016). EPA also 24 proposed a rule establishing human health criteria to replace the disapproved criteria. 25 The final criteria (a hybrid of Washington and EPA’s proposals) was implemented on 26 December 28, 2016. Id; 33 U.S.C. § 1313(c)(3)-(4). Washington did not appeal and 1 subsequently began efforts to implement the criteria. Dkt. # 1 at ¶ 23. 2 On February 21, 2017, the Associations submitted a petition to EPA, asking the 3 agency to reconsider its decision to disapprove portions of the criteria submitted by 4 Washington in 2016. Dkt. # 1, Ex. A. On May 10, 2019, EPA informed Washington that 5 it had decided to revise the 2016 criteria and replace it with the criteria EPA had 6 previously disapproved. Dkt. #1-8, Ex. H. EPA based its decision to revise the criteria 7 on its “inherent authority.” Dkt. # 1-8, Ex. H. 8 On June 6, 2019, Plaintiff sued EPA challenging its decision to revise the human 9 health criteria in Washington’s water quality standards. Dkt. # 1. Plaintiff alleges that 10 EPA improperly relied on its “inherent authority” to revise Washington’s water quality 11 standards, without complying with the procedures proscribed in the CWA. Id. Plaintiff 12 seeks: (1) a declaration that EPA failed to comply with the CWA in revising the human 13 health criteria; (2) a declaration that EPA does not have inherent authority to revise 14 Washington’s human health criteria without complying with the procedures and timelines 15 established in the CWA; and (3) an injunction prohibiting EPA from revising 16 Washington’s human health criteria unless Washington submits new or revised criteria to 17 EPA that do not meet the requirements of the CWA or EPA makes a necessity 18 determination. Dkt. #1, at 12–13. The Sauk-Suiattle Indian Tribe and Quinault Indian 19 Nation both moved to intervene as plaintiffs. Dkt. ## 7, 21.1 The Associations separately 20 move to intervene as defendants. Dkt. # 17. 21 II. DISCUSSION 22 The Associations seeks to intervene as of right under Federal Rule of Civil 23 Procedure 24(a) or in the alternative, permissively under Rule 24(b). Fed. R. Civ. P. 24 24(b). 25 1 On March 9, 2019, the Court granted the Sauk-Suiattle Indian Tribe’s and Quinault 26 Indian Nation’s motions to intervene as plaintiffs in this action. Dkt. # 27. 1 A. Intervention of Right 2 Intervention of right is governed by Federal Rule of Civil Procedure 24(a). When 3 analyzing a motion to intervene of right, courts apply a four-part test: 4 (1) the motion must be timely; 5 (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; 6 (3) the applicant must be so situated that the disposition of the action may as 7 a practical matter impair or impede its ability to protect that interest; and 8 (4) the applicant’s interest must be inadequately represented by the parties to the action. 9 Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011). On a motion 10 to intervene, a district court must accept as true the nonconclusory allegations of the 11 motion and proposed answer. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 12 819 (9th Cir. 2001). The Ninth Circuit construes Rule 24(a) liberally in favor of potential 13 intervenors. California ex rel. Lockyer v. United States, 450 F.3d 436, 440–41 (9th Cir. 14 2006). The party seeking to intervene bears the burden of showing that all the 15 requirements for intervention have been met. United States v. Alisal Water Corp., 370 16 F.3d 915, 919 (9th Cir. 2004). Plaintiff does not dispute the Associations’ motion is 17 timely. Thus, the Court focuses its analysis on the remaining three factors. 18 i. Significant protectable interest 19 “Whether an applicant for intervention as of right demonstrates sufficient interest in 20 an action is a practical, threshold inquiry, and no specific legal or equitable interest need 21 be established.” Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 22 897 (9th Cir. 2011) (internal citations and quotation marks omitted). To demonstrate a 23 significant protectable interest, an applicant must establish that the interest is protectable 24 under some law and that there is a relationship between the legally protected interest and 25 the claims at issue. Id. Here, the Associations have a significant interest in defending 26 1 EPA’s decision to withdraw the previously approved (and more stringent) federal toxics 2 rule for Washington. First, EPA’s decision to reconsider was motivated by the 3 Associations’ February 2017 petition. Dkt. # 1 at Ex. A. Second, the Associations’ 4 members “own or operate facilities whose discharges” will be held to the water quality 5 standards implicated by EPA’s rulemaking. Dkt. # 17 at 7. 6 ii. Impairment of Interest 7 Likewise, disposition of this action may impair the Associations’ ability to protect 8 their interest. “If an absentee would be substantially affected in a practical sense by the 9 determination made in an action, he should, as a general rule, be entitled to 10 intervene . . . .” Citizens for Balanced Use, F.3d at 898 (9th Cir. 2011) (internal citations 11 omitted). Because the Associations are subject to the regulations at issue in this case, an 12 adverse decision would likely result in the Associations being subject to more stringent 13 limitations. This factor favors intervention. 14 iii. Adequacy of representation 15 Courts consider three factors when weighing the adequacy of representation: (1) 16 whether the interest of a party is such that it will undoubtedly make all of a proposed 17 intervenor’s arguments; (2) whether the present party is capable and willing to make such 18 arguments; and (3) whether a proposed intervenor would offer any necessary elements to 19 the proceeding that other parties would neglect. Arakaki v. Cayetano, 324 F.3d 1078, 20 1086 (9th Cir. 2003). The burden of showing inadequacy of representation is minimal. 21 Prete v. Bradbury, 438 F.3d 949, 956 (9th Cir. 2006) (citing Sagebrush Rebellion, Inc. v. 22 Watt, 713 F.2d 525, 528 (9th Cir. 1983)). 23 “The most important factor in determining adequacy of representation is how the 24 interest compares with the interests of existing parties.” Arakaki, 324 F.3d at 1086. “If the 25 applicant’s interest is identical to that of one of the present parties, a compelling showing 26 should be required to demonstrate inadequate representation.” Id. Differences in 1 litigation strategy will not ordinarily warrant intervention. Id. There is also a 2 presumption of adequacy “when the government is acting on behalf of a constituency that 3 it represents.” Prete v. Bradbury, 438 F.3d 949, 956 (9th Cir. 2006) (quoting Arakaki, 4 324 F.3d at 1086). 5 Here, EPA and the Associations share the same ultimate objective — to maintain 6 the validity of EPA’s 2019 decision to revise Washington’s water quality standards and 7 remove the federal toxics rule. Thus, there is a strong presumption that the Associations’ 8 interests will be adequately represented. But the inquiry does not end there. The 9 Associations may still prevail if they can make a “compelling showing” that their 10 interests diverge from EPA’s interests. Southwest Center for Biological Diversity v. 11 Berg, 268 F.3d 810, 823–24 (9th Cir. 2001). 12 The Associations offer several arguments to differentiate their interests from EPA’s 13 interests. First, the Associations argue that EPA represents the “interests of the general 14 public” while the Associations represent the “narrower economic and other interests of its 15 members.” Dkt. # 17 at 9, Ex. A. Next, they argue that there are arguments that EPA is 16 unable or unwilling to make on their behalf, for example, EPA failed to assert an 17 affirmative defense for lack of standing, which the Associations include in their proposed 18 answer. Dkt. # 17 at 10. Additionally, the Associations are poised to offer “necessary 19 elements of the proceeding,” that may not be advanced by EPA, including specific 20 arguments and information regarding the alleged harm and prejudice suffered by 21 Washington as a result of EPA’s 2019 decision. Dkt. #1 at 4, 7–9, 11 (¶¶ 12, 23 and 34). 22 Although EPA asserts a lack of sufficient knowledge and information with respect to 23 these allegations, the Associations “vigorously contest” the allegations and represent they 24 have personal knowledge regarding Washington’s purported implementation of the 25 human health criteria. Dkt. # 23 at 5 (citing Dkt. #12 at 4, 7, 10 (¶¶ 12, 23 and 24)). 26 Finally, the Associations point to EPA’s delay in promulgating the water quality 1 standards and responding to the 2017 petition as further evidence of divergent interests. 2 Dkt. # 17 at 11; Dkt. # 23 at 6. Although a close call, under the liberal Ninth Circuit 3 standard the Court finds that the Associations have met their burden to show that their 4 interests are not adequately represented. Accordingly, the Associations are entitled to 5 intervene as of right under Rule 24(a). 6 B. Permissive Intervention 7 Even if the Associations are not entitled to intervention as of right, the Associations 8 should be allowed to permissively intervene under Rule 24(b). Under Fed. R. Civ. P. 9 24(b)(1), a court may grant permissive intervention where the applicant for intervention 10 shows: “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a 11 common question of law and fact between the movant’s claim or defense and the main 12 action.” Freedom from Religion Found, Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011). 13 i. Independent grounds for jurisdiction 14 The jurisdictional requirement stems from concerns that parties may use 15 intervention to inappropriately expand the jurisdiction of federal courts. This most 16 commonly arises in diversity cases “where proposed intervenors seek to use permissive 17 intervention to gain a federal forum for state-law claims over which the district court 18 would not, otherwise, have jurisdiction.” Freedom, 644 F.3d at 843. Jurisdiction is not 19 an issue here because this case is based on a federal question and there is no indication 20 the Associations intend to bring additional state-law claims. Id. at 844 (“The 21 jurisdictional requirement, therefore, prevents the enlargement of federal jurisdiction in 22 such cases only where a proposed intervenor seeks to bring new state-law claims.”). 23 ii. Timeliness 24 The parties agree the Associations’ motion is timely. 25 iii. Common Question 26 The existence of a common question of fact is liberally construed. See Kootenai 1 Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108–09 (9th Cir. 2002) abrogated on other 2 grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). Here, 3 the Associations’ interest arises from the same common nucleus of facts. Washington 4 seeks to reverse EPA’s 2019 decision withdrawing the federal toxics rule. The 5 Associations (and the EPA) seek to uphold EPA’s decision. Therefore, the Court 6 concludes that there are common questions of fact. 7 Because the Associations meet the requirements for permissive intervention, the 8 Court may allow intervention at its discretion. “In exercising its discretion, the court must 9 consider whether the intervention will unduly delay or prejudice the adjudication of the 10 original parties’ rights.” Fed. R. Civ. P. 24(b)(3). The Court sees no reason why 11 intervention in this action will cause undue delay or prejudice. Therefore, the 12 Associations are entitled to permissive intervention under Rule 24. Fed. R. Civ. P. 13 24(b)(1)(B). 14 III. CONCLUSION 15 For the above reasons, the Associations’ motion to intervene is GRANTED. The 16 Associations shall be made Intervenor-Defendants in this action. The answer attached to 17 the motion to intervene, (Dkt. # 17-1), shall stand as the answer in intervention of the 18 Associations in this action. 19 20 DATED this 23rd day of April, 2020. 21 A 22

23 The Honorable Richard A. Jones 24 United States District Judge 25