Citizens for Clean Air et al v. Wheeler et al, No. 2:2018cv01803 - Document 28 (W.D. Wash. 2019)
Court Description: ORDER granting Defendant-Intervenor State of Alaska's 22 Motion to Intervene; directing Defendant-Intervenor State of Alaska to file its answer on or before Fri., 7/26/2019; granting parties' 27 Stipulated Motion to Hold Briefing Sched ule in Abeyance: Plaintiff's Motion for Summary Judgment is due on 8/14/2019, Defendants' Response and Cross-Motion for Summary Judgment is due on 9/6/2019, Plaintiff's Reply and Response is due on 9/20/2019, Defendants' Reply is due on 10/4/2019; directing parties to file a Joint Status Report on or before Fri., 8/2/2019. Signed by Judge Thomas S. Zilly. (SWT)
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Citizens for Clean Air et al v. Wheeler et al Doc. 28 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 CITIZENS FOR CLEAN AIR, a project of ALASKA COMMUNITY ACTION ON TOXICS; and SIERRA CLUB, Plaintiffs, 10 11 12 13 14 15 v. C18-1803 TSZ 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, 16 17 18 19 20 ORDER Defendants. THIS 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 following order. 21 22 23 ORDER - 1 Dockets.Justia.com 1 IT IS HEREBY ORDERED that the State of Alaska’s (“State”) Motion is 2 GRANTED as a matter of permissive intervention pursuant to Federal Rule of Civil 3 Procedure 24(b). The Court finds that (1) there is an independent ground for jurisdiction 4 under 28 U.S.C. § 1331; (2) the State’s motion is timely; and (3) the State’s proposed 5 defenses share common questions of law and fact with the main action. 6 Defendants Andrew Wheeler and Chris Hladick (“EPA”) do not oppose the State’s 7 motion. Plaintiffs oppose the motion on the sole ground that it is untimely. “In 8 determining whether a motion for intervention is timely, [this Court must] consider the 9 following three factors: ‘(1) the stage of the proceeding at which an applicant seeks to 10 intervene; (2) the prejudice to other parties; and (3) the reason for and length of the 11 delay.’” Smith v. Marsh, 194 F.3d 1045, 1050 (9th Cir. 1999) (quoting League of United 12 Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997)). 13 I. 14 Here, the case has not yet proceeded to the consideration of the merits. Plaintiffs Stage of the Proceedings 15 and the EPA have agreed to a proposed consent decree that would set an enforceable 1816 month deadline for the State to submit a complete serious area State Improvement Plan 17 (“SIP”), with specific consequences if the State fails to meet the deadline. See Proposed 18 Consent Decree, Clean Air Act Citizen Suit, 84 Fed. Reg. 25,803 (June 4, 2019); 42 19 U.S.C. § 7509(a), (b). Although the EPA has answered the complaint and has published 20 a proposed consent decree for public comment, little else has been filed and nothing has 21 been adjudicated in the instant action. The first factor therefore supports the timeliness of 22 the State’s motion. 23 ORDER - 2 1 II. Prejudice to the Parties 2 Granting the State’s motion to intervene may cause some prejudice to the existing 3 parties in the form of additional delay in the resolution of the matter. Specifically, 4 Plaintiffs suggest that air quality in Fairbanks may remain unhealthy for a longer period if 5 the State’s intervention delays the development of a compliant SIP or the imposition of a 6 Federal Improvement Plan (“FIP”) if the State fails to develop a compliant SIP. Plaintiffs 7 have brought multiple lawsuits over the past decade against EPA and the State regarding 8 particulate matter pollution in the Fairbanks area (see Citizens for Clean Air v. McCarthy, 9 No. 16-1594 (W.D. Wash. Oct. 11, 2016); Citizens for Clean Air v. McCarthy, No. 1610 857 (W.D. Wash. June 9, 2016); Citizens for Clean Air v. McCarthy, No. 14-610 (W.D. 11 Wash. April 24, 2014)), so in a sense this dispute is long-running and further delays 12 should be avoided. See United States v. Alisal Water Corp., 370 F.3d 915, 923 (9th Cir. 13 2004) (affirming denial of intervention in heavily litigated case because “intervention 14 could complicate and delay long standing efforts by the United States to ensure safe 15 drinking water”). 16 However, the delay resulting from the State’s intervention, if any, is likely to be 17 short. Cf. League of United Latin Am. Citizens, 131 F.3d at 1304 (upholding denial of 18 intervention where movant “waited twenty-seven months before seeking to interject itself 19 into the case . . . at a time when the litigation was, by all accounts, beginning to wind 20 itself down,” but also “recogniz[ing] . . . that additional delay is not alone decisive 21 (otherwise every intervention motion would be denied out of hand because it carried with 22 it, almost be [sic] definition, the prospect of prolonging the litigation”). Even under the 23 ORDER - 3 1 terms of the proposed consent decree, the State will have eighteen months to produce a 2 compliant SIP. On the other side of the ledger, excluding the State is likely to result in 3 prejudice to the State’s interests given the potential for fines and other sanctions under 4 the proposed consent decree. See Alisal, 370 F.3d at 923 (observing that “to the extent 5 relevant, the prejudice to the [moving party] from being denied intervention is 6 ameliorated by the fact that the district court” left other opportunities for relief open to 7 the moving party). 8 III. 9 “[T]he crucial date in assessing the timeliness of an intervention motion is the date Reasons for the Delay 10 that the applicant should have been aware [its] interest[s] would no longer be protected 11 adequately by the parties.” League of United Latin Am. Citizens, 131 F.3d at 1304 12 (internal quotation marks omitted). “[A]ny substantial lapse of time weighs heavily 13 against intervention.” Id. The State has provided a reasonable explanation for the 614 month delay in seeking intervention since this case was filed. The State claims that it 15 was not until June 4, 2019 when the proposed consent decree was published that it 16 “became clear . . . that EPA would not stand behind the State’s position.” State’s Reply, 17 docket no. 26, at 5. Plaintiffs counter that the State should have been on notice that its 18 interests might not be protected since October 2018 when Plaintiffs served a 60-day 19 notice of intent to sue. See Pltfs.’ Opp., docket no. 25, at 7. Whether the State was on 20 notice at the time the proposed consent decree was published or as far back as Plaintiffs’ 21 pre-litigation notice letter, there has not been a “substantial lapse of time” comparable to 22 the delays in other cases denying intervention. See, e.g., Alisal, 370 F.3d at 922-23 23 ORDER - 4 1 (upholding denial of motion where movant knew interests might be adversely affected at 2 time complaint was filed but waited until the “remedies phase of a case that has been 3 litigated for four years” to seek intervention); League of United Latin Am. Citizens, 131 4 F.3d at 1301, 1304 (affirming denial of motion filed twenty-seven months after 5 complaint, eighteen months after other groups had successfully intervened); Orange 6 County v. Air California, 799 F.2d 535 (9th Cir. 1986) (affirming denial of motion filed 7 after filing of proposed settlement “after five long years of litigation”). Here, the delay 8 was, at most, several months after the moving party was arguably on notice of potential 9 adverse impacts. 10 IV. 11 For the foregoing reasons, the Court ORDERS: 12 (1) Conclusion Defendant-Intervenor State of Alaska’s Motion to Intervene, docket no. 22, 13 is GRANTED. The Clerk is DIRECTED to update the case caption accordingly. 14 (2) Defendant-Intervenor State of Alaska is ORDERED to file its answer on or 15 before Friday, July 26, 2019. 16 (3) The parties’ Fourth Stipulated Motion to Hold Briefing Schedule in 17 Abeyance, docket no. 27, is GRANTED. Plaintiff’s Motion for Summary Judgment is 18 due on August 14, 2019 and shall be noted for consideration on October 4, 2019. 19 Defendants’ Response and Cross-Motion for Summary Judgment is due on September 6, 20 2019. Plaintiff’s Reply and Response is due on September 20, 2019. Defendants’ Reply 21 is due on October 4, 2019. 22 23 ORDER - 5 1 (4) The parties are ORDERED to file a Joint Status Report on or before Friday 2 August 2, 2019, addressing whether any further modifications to the case schedule are 3 warranted in light of the Court granting the State of Alaska’s motion to intervene. 4 (5) 5 IT IS SO ORDERED. 6 Dated this 16th day of July, 2019. 7 The Clerk is directed to send a copy of this Order to all counsel of record. A 8 9 Thomas S. Zilly United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 6
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