CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lisa Jackson, Administrator of the Environmental Protection Agency, Defendants.
Civil Action No. 10-00985 (HHK).
United States District Court, District of Columbia.
April 11, 2011.
794 F. Supp. 2d 151
Angeline Purdy, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER
HENRY H. KENNEDY, JR., District Judge.
Plaintiffs Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment, and Oceana (collectively, “plaintiffs“) bring this action against the U.S. Environmental Protection Agency and its Administrator, Lisa Jackson (collectively, “EPA“), seeking to compel agency action with regard to the regulation of emissions by non-road vehicles and engines, including marine vessels and aircraft, under the Clean Air Act (“the Act“),
I. BACKGROUND
A. The Clean Air Act and Aircraft Emissions Regulations
The Clean Air Act gives EPA the authority to regulate “air pollutants,” a category that it defines very broadly. See
EPA may also promulgate regulations if it determines that any other emissions from such sources “significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”
Pursuant to its authority under the Act, EPA has adopted aircraft emission standards “covering certain criteria pollutants or their precursors and smoke; these standards do not currently regulate emissions of CO2 and other [greenhouse gases].” Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,469 (July 30, 2008). In setting emissions standards, EPA has historically cooperated with the Federal Aviation Administration and the International Civil Aviation Organization, id., which is an agency of the United Nations charged with fostering the safe and orderly growth of international civil aviation.
B. Plaintiffs’ Petitions
Between October 2007 and January 2008, plaintiffs submitted three petitions to EPA, asking it to use its authority under the provisions described above to regulate greenhouse gas emissions from marine vessels, aircraft, and other nonroad vehicles. Compl. ¶¶ 48-50. EPA subsequently issued an Advance Notice of Proposed Rulemaking regarding greenhouse gas emissions, see 73 Fed. Reg. 44,354, but plaintiffs assert that it was not responsive to their petitions because it failed to determine whether greenhouse gas emissions from these sources endanger public health or welfare or to establish a plan for regulating such emissions. Compl. ¶¶ 55-59. Accordingly, plaintiffs filed a notice of intent to sue as required by the Act, Compl. ¶ 53; see
II. ANALYSIS
Movants seek leave to intervene in this action on two grounds: they assert that they are entitled to intervene as of right under
A. Intervention as of Right Under Rule 24(a)
Movants assert that they are entitled to intervene as of right in this action because they have made the necessary showing under
1. Putative Intervenors as of Right Must Establish Article III Standing in this Circuit
Movants argue that the standing inquiry is redundant where a party seeks to intervene as of right “because an intervenor who satisfies Rule 24(a) will also have Article III standing.” ATA & NBAA‘s Reply to Pl.‘s Opp‘n (“ATA & NBAA Reply“) at 2; accord AIA & GAMA Mem. at 10 n. 8. They would thus have the Court set aside the standing inquiry and focus solely on the Rule 24(a)(2) intervention-as-of-right factors. Movants base this argument on the D.C. Circuit‘s opinion in Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003), which acknowledged a split among the circuits as to whether prospective intervenors must establish standing and discussed certain difficulties that can arise when applying the standing inquiry to such cases. Id. at 233-34. In so doing, the Roeder court suggested that “[w]ith respect to intervention as of right in the district court, the matter of standing may be purely academic.” Id. at 233; see also Akiachak Native Cmty. v. U.S. Dep‘t of Interior, 584 F. Supp. 2d 1, 7 (D.D.C. 2008) (citing Roeder for the proposition that a Rule 24 intervenor will always have Article III standing). Movants, however, attribute too much significance to this language. Roeder did not depart from the D.C. Circuit‘s clearly established rule that “an intervenor must also establish its standing under Article III of the Constitution.” Roeder, 333 F.3d at 233 (citing Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731-32 (D.C. Cir. 2003); Bldg. & Constr. Trades Dep‘t v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994)).
First, the Roeder court itself engaged in a standing inquiry, albeit a very brief one. See id. at 233-34. Second, as a three-judge panel, the Roeder court had no authority to abrogate the clear rule announced in prior three-judge panel cases like Fund for Animals and Building and Construction Trades. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Third and finally, subsequent decisions of the D.C. Circuit and this district flatly state that putative intervenors must meet Article III‘s standing requirements. See, e.g., United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1146 (D.C. Cir. 2009); City of Naples Airport Auth. v. FAA, 2004 WL 1080160, at *1 (D.C. Cir. May 13, 2004); Jones v. Prince George‘s Cnty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003); Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13 (D.D.C. 2010); In re Endangered Species Act Section 4 Deadline Litig., 270 F.R.D. 1, 4 (D.D.C. 2010). Thus, the Court cannot eschew the standing inquiry here, and
2. Movants Cannot Establish Article III Standing
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), the Supreme Court explained that “the irreducible constitutional minimum of standing” contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability. Id. at 560-61. A would-be plaintiff or intervenor must show all three. Id. at 561. To establish the existence of an injury-in-fact, a party must show an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.‘” Id. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Where the alleged injury has not yet occurred, the necessary level of imminence is “somewhat elastic,” but requires that the injury be “certainly impending.” Id. at 564 n. 2 (quoting Whitmore, 495 U.S. at 158 (emphasis added)). To establish causation, the party must show that the injury complained of is “fairly . . . trace[able] to the challenged action . . . and not . . . th[e] result [of] the independent action of some third party not before the court.” Id. at 560 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.‘” Id. at 561 (quoting Simon, 426 U.S. at 38, 43).
Here, then, movants must demonstrate a causal connection between a judgment by this Court for plaintiffs and a concrete and imminent injury-in-fact to themselves.3 See Fund for Animals, 322 F.3d at 733. For the purpose of this analysis, the Court will assume that plaintiffs will prevail on the merits of this action and obtain the relief they seek: responses to their petitions, endangerment findings to be undertaken by EPA within 90 days, and the initiation of rulemakings (or explanations for a lack thereof) if the endangerment findings are affirmative. Cf. id. (analyzing the putative intervenor‘s standing with relation to the relief sought by the plaintiffs).
Movants identify two elements of the relief sought by plaintiffs that they believe will cause them injuries sufficiently concrete to confer standing here: the imposition of new aircraft emissions standards, and the development of such standards on an accelerated timetable.4 Plaintiffs rejoin that the former is too hypothetical to confer standing and the latter will not result in any injury to movants. The Court addresses each in turn, finding neither to support movants’ standing here.
a. The Imposition of New Aircraft Emissions Regulations
Movants assert that aircraft emissions standards “have enormous consequences for commercial and business aircraft operators in terms of investment in aircraft, asset value of the existing fleet, maintenance support, and the conduct of operations.” ATA & NBAA Mem. at 4; see also AIA & GAMA Mem. at 5-6. The Court does not doubt, and plaintiffs do not contest, the accuracy of this assertion. Further, this type of injury—economic harm resulting from government action that changes market condi-
In order for a judgment of this Court in plaintiffs’ favor to result in the economic harms identified by movants, several contingencies would have to come about: EPA would have to make endangerment findings; those findings would have to be positive; EPA would have to initiate a rulemaking; that rulemaking would have to result in emissions standards that forced movants to spend money. The parties dispute the extent to which each of these steps must necessarily flow from the previous one, but the only event that is guaranteed to flow directly from a judgment of this Court is the first. The rest are all contingent upon an affirmative endangerment finding by EPA, an outcome that will turn not on any order of this Court but rather on the application of agency expertise to scientific evidence.5 Thus, it cannot be said that if the Court finds for plaintiffs, the economic harm that movants predict will be “certainly impending.” Lujan, 504 U.S. at 564 n. 2 (quoting Whitmore, 495 U.S. at 158 (emphasis added)). Rather, such an outcome would remain “hypothetical” at least until an affirmative endangerment finding was made. Id. at 560 (quoting Whitmore, 495 U.S. at 155) (internal quotation marks omitted). By the same token, the intervening contingency of the endangerment finding prevents the economic harm asserted by movants from being “fairly . . . trace[able]” to a judgment in favor of plaintiffs. Id. (quoting Simon, 426 U.S. at 41) (internal quotation marks omitted). This alleged injury thus fails both the injury-in-fact and causation prongs of the standing test.
None of the cases cited by movants alters this analysis. Each one involved a course of agency action that had advanced beyond the preliminary steps that plaintiffs seek to trigger here. For example, in Fund for Animals, 322 F.3d 728, the plaintiffs sought to reverse a prior determination by the Fish and Wildlife Service (“FWS“) that a particular Mongolian sheep was not “endangered” under the Endangered Species Act. The D.C. Circuit held that the government of Mongolia had standing to intervene in support of FWS, finding that Mongolia had established an imminent injury-in-fact by showing that a listing of the animal as “endangered” would result in restrictions on the import of the animals into the United States and thus a drop in tourist income from American hunters in Mongolia. See id. at 733-34. The key difference between Fund for Animals and this case is that in Fund for Animals, the predicate determination in question had already been made (in the negative) and the plaintiffs were seeking to have the Court reverse it. The same was true in County of San Miguel, Colorado v. MacDonald, 244 F.R.D. 36, 44-45 (D.D.C. 2007) (allowing intervention by landowners where the plaintiffs sought to reverse a decision by FWS not to list as “endangered” an animal species that lived on the landowners’ property).6 Here, by contrast, plaintiffs only ask
A much closer analogue to this case can be found in In re Endangered Species Act Section 4 Deadline Litigation, 270 F.R.D. 1, 4-5 (D.D.C. 2010) [hereinafter In re ESA Litigation]. There, the plaintiffs (some of whom are plaintiffs in this case) alleged that FWS had failed to determine, before a statutorily imposed deadline, whether a particular species of salamander was endangered, and sought “an order declaring that the FWS failed to comply with its statutorily-mandated deadline and . . . requiring the Secretary to make the required finding by a date certain.” Id. at 4. A corporation called TRC, which owned land comprising a portion of the salamander‘s habitat, sought to intervene on behalf of FWS, arguing that “the outcome of the FWS listing determination for this species may precipitate restrictions on the use of its land and business operations.” Id. at 5. The In re ESA Litigation court concluded that the corporation had failed to establish Article III standing, stating:
TRC‘s alleged injury is based entirely on the potential substantive outcome of the FWS‘s listing determination for the Tehachapi slender salamander, which is not before this Court. The case before this Court deals only with the FWS‘s alleged failure to complete a preliminary step in the listing process within the time period required by law. Because this Court will issue no order directly impacting TRC‘s use of its property, TRC‘s claims of injury from restrictions on its property use and business operations bear no relation to the present action.
Id. at 5 (emphasis added). The same is true here. Movants’ alleged injury “is based entirely on the potential substantive outcome of [EPA‘s endangerment] determination . . . which is not before this Court.” Id. Accordingly, that injury is neither certainly impending nor fairly traceable to any judgment of this Court in the present action. See Lujan, 504 U.S. at 560, 564 n. 2; In re ESA Litigation, 270 F.R.D. 1, 5.
b. The Accelerated Timetable Sought by Plaintiffs
In an effort to narrow the causal gap between a judgment of this Court for plaintiffs and any concrete harm to themselves, movants next assert that they would be harmed by the accelerated timetable sought by plaintiffs, under which EPA would be required to issue endangerment findings within 90 days of the Court‘s judgment. Movants fear that the resulting regulations could impose “significant costs which may or may not be practical, realistic, or justified.” AIA & GAMA Mem. at 13. Plaintiffs respond that they do not in fact seek an accelerated timetable for the promulgation of regulations, only for the predicate endangerment findings. Thus, plaintiffs aver, any regulations that eventually result will have had the benefit of full deliberation by EPA and participation by movants. Plaintiffs have the stronger argument.
Movants appear to argue that they would be harmed both by a rushed rulemaking process and by an accelerated endangerment finding. The former, however, is not among the relief sought by plaintiffs. Rather, plaintiffs merely ask the Court to declare that if EPA makes an affirmative endangerment finding, it must “initiate rulemaking” pursuant to the Clean Air Act. Compl. at 29 (emphasis added). No timetable for the initiation or completion of such a rulemaking is requested.8 Thus, there appears to be no
Plaintiffs do, however, seek an accelerated timetable for the predicate endangerment findings: they ask the Court to order EPA to conduct endangerment findings within 90 days of the Court‘s judgment. Even so, movants fail to clarify why such an outcome would support standing here. They assert that 90 days is not a sufficient length of time for EPA to adequately consider the aviation industry‘s “many technical, legal, and practical complexities.”9 AIA & GAMA Mem. at 13. They do not explain, however, how such an outcome would actually harm them. If they mean to suggest that a shortened endangerment finding period would increase the likelihood of an affirmative finding, thus triggering unnecessary rulemaking, they do not explain how or why that is the case. Further, for such an argument to support standing, movants would need to show both that a 90-day timetable would constitute an omission of a statutorily required procedure and that it is “substantially probable” that such an omission would cause them an injury-in-fact. Florida Audubon Society v. Bentsen, 94 F.3d 658, 664-65 (D.C. Cir. 1996). They have not attempted to show the former at all, and have failed to establish the latter.10 Accordingly, the timetable elements of the relief sought by plaintiffs cannot create standing for movants to intervene here.
3. Movants May Not Intervene as of Right Because They Lack Standing
Because movants fail to identify an injury that is concrete, certainly impending, and fairly traceable to a judgment of the Court, they cannot establish standing and may not intervene as of right in this action. The Court will thus eschew any separate consideration of the
B. Permissive Intervention Under Rule 24(b)
In the alternative, movants seek permissive intervention under
At the outset, the Court notes that there is substantial confusion as to whether the D.C. Circuit‘s reading of
In exercising its discretion under
Movants’ concern over this case is obvious: if plaintiffs succeed in compelling EPA to undertake endangerment findings with regard to aircraft emissions, those findings might be positive. If so, EPA may promulgate regulations that could impose financial burdens on movants. What is less obvious is movants’ potential contribution to the “just and equitable adjudication of the legal question presented.” Aristotle, 714 F. Supp. 2d at 18 (quoting H.L. Hayden Co., 797 F.2d at 89). Movants argue persuasively that they have substantial expertise and a unique perspective regarding the manufacture and operation of aircraft and the engines thereof. Contrary to movants’ assertions, however, aircraft and their engines are not at issue in this case. Rather, the Court has been asked to determine whether EPA has an enforceable obligation to make the findings sought by plaintiffs and, if so, whether it has breached that obligation. With regard to these questions, movants offer no more than conclusory assertions that their participation will be helpful, and fail to demonstrate an “ability to contribute to the full development of the factual and legal issues presented.” City of Williams v. Dombeck, 2000 WL 33675559, at *4 (D.D.C. Aug. 17, 2000) (quoting Humane Soc‘y v. Clark, 109 F.R.D. 518, 521 (D.D.C. 1985)); cf. Envtl. Def. Fund v. Thomas, 1985 WL 6050, at *6-7, 23 ERC 1532 (D.D.C. Oct. 29, 1985) (denying permissive intervention where industry groups sought to intervene in a suit over the timing with which EPA would promulgate certain regulations, on the ground that their “substantial experience and technical expertise as an industry . . . ha[d] no bearing on the legality of the timetable process here in dispute“).
Thus, even if movants’ interest in this case is sufficiently concrete to constitute “a claim or defense” under Rule 24(b)—and if their lack of Article III standing does not otherwise preclude permissive intervention—intervening in this essentially procedural matter is not an appropriate mechanism for [movants] to protect [their] substantive inter-
IV. CONCLUSION
For the foregoing reasons, movants’ motions to intervene must be denied. Accordingly, it is this 11th day of April 2011 hereby
ORDERED that ATA and NBAA‘s motion to intervene in support of defendant [#10] is DENIED; and is further
ORDERED that AIA and GAMA‘s motion to intervene in support of defendant [#12] is DENIED.
HENRY H. KENNEDY, JR.
UNITED STATES DISTRICT JUDGE