Defenders of Wildlife v. Jackson
284 F.R.D. 1
D.D.C.2012Background
- Plaintiffs Defenders of Wildlife and Sierra Club sue EPA under the Clean Water Act to compel revision of steam electric ELGs and jointly move for entry of a consent decree.
- UWAG, a trade association of electric power companies, seeks to intervene to contest the proposed rulemaking schedule.
- EPA has not revised the steam electric ELGs since 1982, though it announced in 2009 its intent to revise and began collecting data by 2010.
- The consent decree requires EPA to issue a notice of proposed rulemaking by July 23, 2012 and to take final action by January 31, 2014, with possible extensions by written agreement.
- The decree contains no admission of violation and states it shall not limit EPA discretion in rulemaking.
- UWAG argues it has a legally protectable interest and standing, but plaintiffs and EPA oppose intervention as premature and unfounded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under CWA | Plaintiffs contend CWA §1365(a)(2) provides jurisdiction for nondiscretionary duty claims. | EPA and defendants argue jurisdiction exists regardless of consent decree, and the decree does not affect jurisdiction. | Court retains jurisdiction; decree does not defeat jurisdiction. |
| Standing to intervene | UWAG asserts its members have standing to intervene to protect interests. | Plaintiffs and EPA contend UWAG fails to show concrete, imminent injury and standing on behalf of members. | UWAG lacks constitutional standing to intervene. |
| Legally protectable interest | UWAG claims a legally protectable interest in the rulemaking timetable affecting costs and operations. | No direct, immediate interest shown that would be impaired by the decree's timetable. | No legally protectable interest shown; Rule 24(a)(2) not satisfied. |
| Intervention as of right or permissive intervention | UWAG seeks intervention to press lack of jurisdiction and schedule issues. | Even if shared questions exist, participation would delay adjudication and UWAG’s jurisdiction challenge is inappropriate for intervention. | Intervention as of right denied; permissive intervention denied due to likely delay. |
Key Cases Cited
- Sierra Club v. EPA, 475 F. Supp. 2d 29 (D.D.C. 2007) (nondiscretionary duty and jurisdiction under CWA)
- OCEF v. EPA, 527 F.3d 849 (D.C. Cir. 2008) (mandatory review duties and standing considerations)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (agency discretion does not excuse compliance with procedures)
- Am. Tel. & Tel. Co. v. United States, 642 F.2d 1285 (D.C. Cir. 1980) (staffed approach to administrative standing and intervention)
- Fund for Animals v. Norton, 322 F.3d 728 (D.C. Cir. 2003) (standing and zone-of-interest principles for intervention)
- Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55 (D.D.C. 2004) (non-discretionary duty and procedural rights in rulemaking)
- Curran v. Holder, 626 F. Supp. 2d 30 (D.D.C. 2009) (subject-matter jurisdiction and intervention considerations)
- Our Children’s Earth Found. v. EPA, 527 F.3d 842 (9th Cir. 2008) (non-discretionary duty and agency timing in review)