894 F.3d 1030
9th Cir.2018Background
- Volkswagen installed software “defeat devices” in certain diesel vehicles that reduced NOx emissions only during testing, causing 10–40x excess emissions in normal use; EPA issued a Notice of Violation and sued VW under § 203 of the Clean Air Act (42 U.S.C. § 7522).
- The government’s complaint alleged violations for lacking certificates of conformity, use of defeat devices and AECDs, tampering, and false reporting; the government sought injunctions, mitigation, and civil penalties; the case was consolidated in an MDL.
- The parties negotiated a consent decree requiring buybacks, modifications, and payments into mitigation funds; the decree targeted an 85% participation rate and was filed for public comment.
- Ronald Fleshman, owner of a 2012 Jetta, attempted to intervene in the government’s enforcement action, arguing the consent decree failed to require rescission of sales and conflicted with Virginia’s SIP provision banning operation of vehicles with disabled pollution-control devices.
- The district court denied intervention, holding (1) the Clean Air Act’s citizen-suit intervention right applies only to those barred from suing by the government’s diligent prosecution bar and (2) Fleshman lacked standing to pursue the broader remedies he sought.
- Fleshman appealed; the Ninth Circuit affirmed, concluding Fleshman had no statutory right to intervene under § 7604(b)(1)(B) and could not intervene as of right under Rule 24(a)(2) because he lacked standing for the relief he sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 7604(b)(1)(B) (Clean Air Act) gives Fleshman an unconditional right to intervene in the government enforcement action | Fleshman argued § 7604’s “any person may intervene” lets him intervene to enforce state SIP requirements that the decree allegedly failed to protect | Government argued the right to intervene applies only to citizens whose ability to bring their own § 7604(a)(1) suit is displaced by a government action enforcing the same “standard, limitation, or order” | Held: No. The Act’s intervention right is limited to citizens barred from suing by the diligent-prosecution bar — Fleshman was not barred, so no § 7604(b)(1)(B) right to intervene |
| Whether the government’s suit was enforcing a “standard, limitation, or order” that displaces citizen suits | Fleshman contended the consent decree affected SIP enforcement and thus displaced his citizen-suit rights | Government and court: the U.S. sued under statutory prohibitions in § 7522, not under an EPA- or SIP-prescribed "emission standard or limitation" described in § 7604(a)(1) | Held: The government was not enforcing an "emission standard or limitation" within § 7604(a)(1); § 7522 prohibitions are distinct, so Fleshman was not precluded from filing his own citizen suit |
| Whether Fleshman’s proposed claims actually seek enforcement of the same provisions the government sued to enforce | Fleshman’s pleadings referenced SIP violations and requested state-SIP–focused relief (rescission, notifications), asserting the decree undermined SIP enforcement | Government noted Fleshman’s complaints did not rely on § 7522 claims that the government invoked and instead focused on SIP enforcement or EPA duties under other provisions | Held: Fleshman’s proposed complaints sought different relief and alleged different violations than the government’s § 7522 claims, so the government’s action did not bar Fleshman |
| Whether Fleshman may intervene as of right under Rule 24(a)(2) (Article III standing for additional relief) | Fleshman argued his interest in SIP enforcement and preventing illegal use of affected cars justifies intervention | Government argued Fleshman lacked standing for the broad, nationwide rescission and mandatory-notification relief he sought; harms he alleged were speculative or primarily injuries to third parties and thus not cognizable | Held: No. Fleshman lacks Article III standing to pursue relief beyond what the government sought, so he cannot intervene as of right under Rule 24(a)(2) |
Key Cases Cited
- Massachusetts v. EPA, 549 U.S. 497 (explaining EPA authority to prescribe vehicle emissions standards)
- Gen. Motors Corp. v. United States, 496 U.S. 530 (describing federal-state cooperative SIP scheme)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (discussing citizen-suit notice and government-action bar)
- United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968 (2d Cir.) (holding intervention limited to actions that would have been brought but for government action)
- United States v. Stone Container Corp., 196 F.3d 1066 (9th Cir.) (discussing scope of § 7604 intervention and duplicative claims)
- Metro. St. Louis Sewer Dist. v. United States, 569 F.3d 829 (8th Cir.) (construing Clean Water Act analogous intervention right)
- Del. Valley Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 970 (3d Cir.) (holding § 7604 does not create independent intervention rights)
- Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (standing required for intervenor seeking different relief)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (standard for imminent or substantial risk of future harm for standing)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (future injuries that are speculative do not confer standing)