-GGH California Dump Truck Owners Association v. Air Resources Board, No. 2:2011cv00384 - Document 18 (E.D. Cal. 2011)

Court Description: ORDER granting 10 NRDC's Motion to Intervene, signed by Judge Morrison C. England, Jr., on 5/20/11. The NRDC is ordered to file its Answer not later than 10 days following the date this Order is electronically filed. (Kastilahn, A)
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-GGH California Dump Truck Owners Association v. Air Resources Board Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION No. 2:11-cv-00384-MCE-GGH 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 15 16 17 MARY D. NICHOLS; Chairperson of the California Air Resources Board; JAMES GOLDESTENE, Executive Office of the California Air Resources Board, 18 Defendants. 19 ----oo0oo---- 20 21 Plaintiff California Dump Truck Owners Association 22 (“Plaintiff”) initiated this action against the Chairperson and 23 the Executive Officer of California’s Air Resources Board 24 (hereafter collectively the “ARB”) seeking to enjoin enforcement 25 of the ARB’s Truck and Bus Regulation (“Regulation”) on the basis 26 it is preempted by federal law. 27 /// 28 /// 1 Dockets.Justia.com 1 Presently before the Court is a Motion to Intervene (“Motion”) 2 filed by the Natural Resources Defense Council, Inc. (“NRDC”). 3 For the following reasons, the NRDC’s Motion is GRANTED.1 4 BACKGROUND 5 6 7 The Regulation, which is formally entitled “Regulation to 8 Reduce Emissions of Diesel Particulate Matter, Oxides of Nitrogen 9 and Other Criteria Pollutants from In-Use Heavy-Duty Disel-Fueled 10 Vhicles,” 13 California Code of Regulations § 2025, sets fuel 11 emission standards for heavy-duty, diesel-fueled vehicles driven 12 on or designed to be driven on public highways and is intended to 13 reduce vehicle emissions. 14 ¶ 4. 15 emissions and to positively affect the health of California’s 16 citizens. 17 Plaintiff’s First Amended Complaint, The Regulation is expected to drastically reduce fuel Motion, 3:1-16. The NRDC’s organizational purpose “is to protect the 18 environment and public health, including the environment and 19 health of its members.” 20 profit organization with more than 400,000 members nationwide and 21 more than 70,000 California members. 22 the NRDC, many of its California members reside “near 23 transportation corridors where vehicles covered by the Regulation 24 will travel.” 25 /// Id., 6:11-13. It is a national non- Id., 6:9-16. According to Id., 6:15-16. 26 27 28 1 Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 230(g). 2 1 While all NRDC members benefit from the Regulation’s anticipated 2 reduction in vehicle emissions, and from the consequent reduction 3 in health risks, those members living near impacted freeways are 4 significantly affected by the rule. 5 contends that, if Plaintiff is successful in its claims, “NRDC’s 6 efforts to reduce diesel emissions across the state will be 7 significantly impaired and the health benefits of the Regulation 8 will be lost.” 9 Id., 6:17-21. The NRDC thus Id., 7:23-8:1. As part of the NRDC’s efforts, it spent over two years 10 actively advocating passage of the Regulation. 11 More specifically, the “NRDC attended meetings with [ARB] staff 12 to help develop the Regulation, provided written comments to 13 [ARB] advocating that the Board strengthen the Regulation, 14 participated in public workshops on the Regulation, and testified 15 before [ARB] at the public hearing urging adoption of the 16 Regulation.” 17 Id., 3:17-21. Id., 3:18-21. “During the rulemaking process, NRDC disagreed with [ARB] 18 over many aspects of the Regulation, with NRDC advocating for 19 more stringent controls.” 20 NRDC’s objections, the ARB amended the Regulation in December 21 2010, weakening compliance provisions and delaying the 22 implementation schedule for some requirements. 23 during the course of this still-new litigation, the NRDC has 24 taken issue with the ARB’s defense of the rule, pointing to 25 statements in the ARB’s Answer as evidence of the ARB’s 26 willingness to amend the Regulation even further to appease 27 Plaintiffs. 28 /// Id., 9:1-3. 3 Moreover, despite the Id., 9:3-6. Even 1 Reply, 11:16-12:3 (quoting ARB’s Answer, ¶ 27 (“Plaintiff’s claim 2 will soon be moot because the [ARB] is presently considering 3 amending the regulation at issue to make it less stringent for 4 dump trucks and other heavy duty trucks and buses.”)). 5 and the ARB have thus been at odds over the Regulation on a 6 number of occasions. 7 The NRDC Motion, 9:9-10. The NRDC now argues that it should be allowed to intervene 8 as a matter of right pursuant to Federal Rule of Civil Procedure 9 24(a)(2).2 10 Alternatively, Plaintiffs seek permissive intervention under the provisions of Rule 24(b). 11 Plaintiff opposes the NRDC’s Motion, though the ARB does 12 not. According to Plaintiff, its suit presents only a “binary” 13 question: “either the regulation is preempted or it is not.” 14 Opposition, 2:5. 15 unlikely be able to contribute anything meaningful to this 16 litigation because the law on preemption is settled, the relevant 17 facts are likely to be undisputed and settlement is unlikely. 18 Id., 2:8-12. Plaintiff thus argues that the NRDC will 19 ANALYSIS 20 A. 21 Intervention as of Right 22 23 An intervenor as a matter of right must meet all 24 requirements of Rule 24(a)(2) by showing: 25 /// 26 /// 27 2 28 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 4 1 2 3 4 5 6 7 8 9 10 (1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant’s interest. In evaluating whether these requirements are met, courts “are guided primarily by practical and equitable considerations.” Further, courts generally “construe [the Rule] broadly in favor of proposed intervenors.” “‘A liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts. By allowing parties with a practical interest in the outcome of a particular case to intervene, we often prevent or simplify future litigation involving related issues; at the same time, we allow an additional interested party to express its views before the court.’” 11 12 United States v. City of Los Angeles, 288 F.3d 391, 397-98 (9th 13 Cir. 2002) (citations omitted). 14 In its Opposition, Plaintiff challenges only whether the 15 NRDC has a significantly protectable interest related to the 16 litigation and whether, absent intervention, the ARB will 17 adequately represent the NRDC’s interests. 18 aforementioned requirements articulated in Rule 24(a)(2) will 19 nonetheless be addressed in turn below. Each of the 20 21 1. NRDC’s application to intervene is timely. 22 23 24 25 26 27 28 Three facts must be evaluated to determine whether a motion to intervene is timely: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. Delay is measured from the date the proposed intervenor should have been aware that its interests would no longer be protected adequately by the parties, not the date it learned of the litigation. 5 1 United States v. State of Washington, 86 F.3d 1499, 1503 (9th 2 Cir. 1996) (internal citations omitted). 3 determined from all the circumstances” in the court’s “sound 4 discretion”. 5 “Timeliness is to be NAACP v. New York, 413 U.S. 345, 366 (1973). Plaintiff does not dispute the timeliness of the NRDC’s 6 request. Plaintiff filed its case in February, amended its 7 complaint at the beginning of April and no substantive 8 proceedings have been had. 9 timely. The NRDC’s Motion is therefore 10 2. 11 The NRDC has a significant protectable interest related to the subject matter of this litigation. 12 13 A proposed intervenor has “a ‘significant protectable 14 interest’ in [the] action if (1) [it asserts] an interest that is 15 protected under some law, and (2) there is a ‘relationship’ 16 between [that] legally protected interest and the plaintiff’s 17 claims.” 18 v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). “The ‘interest’ 19 test is not a clear-cut or bright-line rule, because ‘[n]o 20 specific legal or equitable interest need be established.’” 21 (quoting Greene v. United States, 996 F.2d 973, 976 (9th Cir. 22 1993)). 23 ‘practical, threshold inquiry,’ to discern whether allowing 24 intervention would be ‘compatible with efficiency and due 25 process.” Id. (citations omitted). 26 /// 27 /// 28 /// City of Los Angeles, 288 F.3d at 398 (quoting Donnelly Id. Under the interest test courts are required “to make a 6 1 An applicant may satisfy the requirement of a “significant 2 protectable interest” if resolution of the plaintiff’s claims 3 will affect the applicant for intervention. 4 States Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9th Cir. 5 1998). 6 applicant asserts an interest protected by law and there is a 7 “relationship” between that interest and the plaintiff’s claims. 8 Donnelly, 159 F.3d at 409. 9 direct as long as it may be impaired by the outcome of the Montana v. United A “significant protectable interest” exists if the The requisite interest need not be 10 litigation. 11 Co., 386 U.S. 129, 135-36 (1967). 12 Cascade Natural Gas Corp. v. El Paso Natural Gas The NRDC cites two protectable interests as the basis for 13 its intervention: 1) its members’ interests in reducing the 14 public health impacts of diesel emissions in California; and 15 2) its interests in upholding regulations the adoption of which 16 they actively advocated. 17 First, the NRDC argues that numerous of its California 18 members live near transportation corridors where vehicles covered 19 by the Regulation travel. 20 most by the localized increase in emissions that will result from 21 a finding that the regulation is preempted. 22 These members will be affected the In addition, the NRDC points out that it worked with the ARB 23 for over two years to develop the Regulation, and that the NRDC 24 advocated both the Regulation’s adoption and strengthening. 25 NRDC attended meetings with ARB staff, provided written comments, 26 participated in public workshops and testified before ARB to urge 27 adoption of the Regulation. 28 /// 7 The 1 Both of the NRDC’s articulated interests are sufficient to 2 support intervention. To reiterate, the NRDC is not obligated to 3 identify a “specific legal or equitable interest.” 4 that the NRDC members benefit from the challenged legislation by 5 way of improved air quality and health. 6 Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 7 1189-90 (9th Cir. 1998) (union permitted to intervene in suit 8 challenging state prevailing wage laws because union members had 9 a significant interest in receiving those wages). It is enough See Californians for Even if that 10 were not the case, however, the NRDC’s interests are protected 11 under numerous federal and state statutes, such as the Clean Air 12 Act, 42 U.S.C. § 7401(b), the California Health and Safety Code 13 §§ 39000-01, and the Regulation itself. 14 interest organization has a significantly protectable interest in 15 defending legislation it supported. 16 Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995) (“A public interest 17 group is entitled as a matter of right to intervene in an action 18 challenging the legality of a measure it has supported.”); 19 Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 20 1983). 21 protectable interest has been demonstrated. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// In addition, a public Idaho Farm Bureau Fed’n v. As such, the Court concludes here that a significant 8 3. 1 2 Disposition of this matter, may, as a practical matter, impair or impede the NRDC’s ability to protect its interests. 3 4 According to the NRDC, a decision in Plaintiff’s favor would 5 impair the NRDC’s ability to protect its and its members’ 6 interests in reducing the public health impacts of diesel 7 emissions in California as well as its interests in upholding 8 regulations the adoption of which they actively advocated. 9 Because of their proximity to highway corridors, some NRDC 10 members will suffer direct and immediate health consequences from 11 a ban on the enforcement of the Regulation’s emissions reduction 12 standards. 13 NRDC’s advocacy efforts in supporting the passage of the 14 Regulation over the last several years. 15 if the Regulation is struck down, it cannot “simply turn around 16 and adopt a similar regulation the next day that would result in 17 the same level of emissions reductions sorely needed for the 18 state to meet federal air quality standards.” 19 Consequently, this threshold requirement for intervention is also 20 satisfied. Finally, a decision for Plaintiff will undermine the As the NRDC points out, Reply, 5:17-19. 21 4. 22 Existing parties may not adequately protect the NRDC’s interests. 23 24 When determining whether a proposed intervenor’s interests 25 are adequately represented, the following factors are considered: 26 /// 27 /// 28 /// 9 1 (1) whether the interest of a present party is such that it will undoubtedly make all the intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that such other parties would neglect. 2 3 4 5 City of Los Angeles, 288 F.3d at 398 (citations omitted). 6 The burden of showing that existing parties may inadequately 7 represent the NRDC’s interests is a minimal one. As noted by the 8 Supreme Court, all the applicant needs to show is that “the 9 representation of [its] interest ‘may be’ inadequate.” Trbovich 10 v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972). 11 Any doubt as to whether the existing parties will adequately 12 represent the intervenor should be resolved in favor of 13 intervention. 14 Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993). 15 Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special “The most important factor in determining the adequacy of 16 representation is how the interest compares with the interests of 17 existing parties. 18 existing party have the same ultimate objective, a presumption of 19 adequacy arises. 20 that of one of the present parties, a compelling showing should 21 be required to demonstrate inadequate representation. 22 also an assumption of adequacy when the government is acting on 23 behalf of a constituency that it represents. 24 very compelling showing to the contrary, it will be presumed that 25 a state adequately represents its citizens when the applicant 26 shares the same interest.” 27 1086 (9th Cir. 2003) (internal citations and quotations omitted). 28 /// When an applicant for intervention and an If the applicant’s interest is identical to There is In the absence of a Arakaki v. Cayetano, 324 F.3d 1078, 10 1 While the NRDC and the ARB may share the same “ultimate 2 objective,” namely defending the regulation against Plaintiff’s 3 preemption argument, the parties’ interests are neither 4 “identical” nor “the same.” 5 v. Berg, 268 F.3d 810, 823 (9th Cir. 2001) (presumption of 6 adequacy can be overcome by showing the parties “do not have 7 sufficiently congruent interests”). 8 not only different, they are in some respects adverse. 9 is a public agency that must balance relevant environmental and See Sw. Ctr for Biological Diversity In fact, their interests are The ARB 10 health interests with competing resource constraints and the 11 interests of various constituencies (including Plaintiff’s), 12 interests that can be, and here are, at odds with the NRDC’s 13 interests. 14 public health, welfare and ecological resources through the 15 effective and efficient reduction of air pollutants while 16 recognizing and considering the effects on the economy of the 17 state.” 18 Strategic Plan) (emphasis added). 19 is not required to balance any economic impact against its own 20 considerations pertaining to health and environmental 21 protections. 22 Indeed, the ARB’s mission is to “promote and protect Motion, 8 n.9 (quoting the ARB’s Mission, goal, and The NRDC, on the other hand, Moreover, prior to the passage of the Regulation, the NRDC 23 and the ARB were directly at odds on a number of pertinent 24 issues. 25 steps to weaken the Regulation by amending certain compliance 26 provisions and pushing out compliance deadlines. 27 /// 28 /// Against the NRDC’s objections, the ARB has already taken 11 1 Likewise, in its answer, the ARB indicates it is further 2 considering amending the Regulation to make its application “less 3 stringent” for vehicles such as those owned by Plaintiff’s 4 members. 5 its current willingness to amend the Regulation, indicate the 6 NRDC is willing to compromise unnecessarily to appease Plaintiff 7 and to settle this action. 8 showing that its interests not only diverge from those of the 9 ARB, but at times are adverse to the ARB’s. 10 The NRDC argues that ARB’s past practices, along with The NRDC has thus made a sufficient Based on the above analysis, the NRDC has therefore made the 11 requisite showing that the ARB may not adequately represent its 12 interests because the NRDC has provided evidence that: 1) as 13 described above, the NRDC’s interests are more “narrow and 14 parochial” than those of the ARB, which is tasked not only with 15 considering the environmental effects of its regulation, but also 16 with considering the economic impact its rules will have on the 17 state as a whole; and 2) despite the NRDC’s protests, the ARB is 18 willing to compromise, and potentially eviscerate, the Regulation 19 in favor of Plaintiff’s interests.3 20 21 22 23 24 25 26 27 28 3 See California, ex rel. Bill Lockyer v. United States, 450 F.3d 436, 445 (9th Cir. 2006) (proposed intervenors overcame presumption of showing government would adequately represent their interests when intervenors had “more narrow, parochial interests” than the government and intervenors had presented evidence that the government would “take a position that actually compromise[d] (and potentially eviscerate[d]) the protections of the [challenged law]”); Golden Gate Rest. Ass’n v. City and County of San Francisco, 2007 WL 1052820, * (N.D. Cal.) (observing that the assumption of adequacy arising when a government agency acts on behalf of its constituents may be overcome by a showing that the proposed intervenor’s interests are “more narrow and parochial than the interests of the public at large”) (citing Californians For Safe and Competitive Dump (continued...) 12 1 The requirement that existing parties may not adequately 2 represent the NRDC’s interests is therefore satisfied. 3 After considering all of the intervention factors as set 4 forth above, the Court finds that the NRDC is entitled to 5 intervene as a matter of right in this action. 6 B. 7 Permissive Intervention 8 9 Even if the NRDC had failed to make the requisite showing 10 that it is entitled to intervene as of right, the Court finds 11 permissive intervention proper as well. 12 is appropriate if the moving party satisfies three requirements: 13 /// 14 /// 15 /// Permissive intervention 16 17 18 19 20 21 22 23 24 25 26 27 28 3 (...continued) Truck Transp., 152 F.3d at 1190 (“because employment interests of [union’s] members were potentially more narrow and parochial than the interests of the public at large, [union] demonstrated that the representation of its interests by [the state] may have been inadequate”); Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995) (intervenor met its burden of showing inadequate representation when government was “required to represent a broader view than the more narrow, parochial interests” of the intervenor)); In Defense of Animals v. U.S. Dept. of Interior, 2011 WL 1085991, *3 (E.D. Cal.) (intervenor made showing government may not adequately represent its interests when intervenor “had specific interests...that may not be shared by the Federal defendants, who represent a wide variety of sometimes competing interests held by various segments of the general public”); see also Arakaki, 324 F.3d 1087 (upholding denial of intervention when the government made clear it would make all necessary arguments to protect the would-be intervenors’ rights, no conflict prevented the state agency from making those arguments, the would-be intervenor failed to show it would offer any necessary elements not already offered in the litigation, and similarly-situated parties had already been permitted to intervene in the action). 13 1 “(1) the movant must show an independent ground for jurisdiction; 2 (2) the motion must be timely; and (3) the movant’s claim of 3 defense and the main action must have a question of law and fact 4 in common.” 5 1989), aff’d, 495 U.S. 82 (1990); see also Fed. R. Civ. Proc. 6 24(b). 7 Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir. This Court has an independent ground for jurisdiction under 8 28 U.S.C. §§ 1331 and 1367, the NRDC’s defenses and the main 9 action raise common questions of law and fact, and the Court has 10 already found above the Motion is timely. Plaintiff’s only 11 arguments in opposition to permissive intervention are that the 12 NRDC will add nothing of substance to the litigation of this 13 matter and that Plaintiff will be prejudiced by having to 14 litigate against both “the awesome power of the State” and a 15 “well-funded, nationwide organization.” 16 light of the NRDC’s above-discussed interest in the merits of 17 this litigation, Plaintiff’s objection is insufficient to warrant 18 denial of the Motion. 19 Plaintiff’s unsupported argument that it will be unduly burdened 20 by litigating against the state and an intervenor, there would be 21 almost no case in which permissive intervention would be granted. 22 See also City of Los Angeles, 288 F.3d at 404 (“[T]he idea of 23 ‘streamlining’ the litigation...should not be accomplished at the 24 risk of marginalizing those...who have some of the strongest 25 interests in the outcome.”). 26 /// 27 /// 28 /// Opposition, 6:19-25. In Indeed, were this Court to accept 14 1 Likewise, the NRDC has shown that it will bring a unique 2 perspective and expertise to this action that will not 3 necessarily, as Plaintiff suggests, duplicate the ARB’s role. 4 Accordingly, the Court finds permissive intervention is 5 warranted. 6 CONCLUSION 7 8 9 For the reasons just stated, the NRDC’s Motion to Intervene 10 (ECF No. 10) is GRANTED. 11 not later than ten (10) days following the date this Order is 12 electronically filed. 13 14 The NRDC is ordered to file its Answer IT IS SO ORDERED. Dated: May 20, 2011 15 16 17 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 15