Defenders of Wildlife v. Jackson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
DEFENDERS OF WILDLIFE, et al.,)
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1915 (RWR)
)
LISA JACKSON, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Plaintiffs Defenders of Wildlife and the Sierra Club filed a

complaint against the Administrator of the Environmental

Protection Agency (“EPA”) under the Clean Water Act (“CWA”), 33

U.S.C. § 1365(a)(2), to compel the EPA to revise certain

regulations governing wastewater discharges from power plants,

and they simultaneously filed a proposed consent decree resolving

the complaint. The Utility Water Act Group (“UWAG”), a trade

organization whose members include hundreds of electric power

companies, seeks to intervene as a defendant under Federal Rule

of Civil Procedure 24, challenging as truncated the rulemaking

schedule proposed in the parties’ consent decree. The existing

parties oppose intervention, arguing that UWAG has no legally

protectable interest in the rulemaking schedule and will suffer

no cognizable injury if it is adopted. Because UWAG has not

demonstrated that it has standing or that entering the consent

decree will impair its legally protectable interests, and because
 - 2 -

intervention will unduly delay this litigation, the motion to

intervene will be denied.

BACKGROUND

Enacted in 1972, the CWA “regulates the discharge of

pollutants into navigable waters[.]”1 Natural Res. Def. Council,

Inc. v. Cnty. of L.A., No. 10-56017, 2011 WL 2712963, at *9 (9th

Cir. July 13, 2011) (internal quotation marks and citation

omitted). It seeks to “restore and maintain the . . . integrity

of the Nation’s waters by replacing water quality standards with

point source2 effluent limitations.” Nw. Envtl. Def. Ctr. v.

Brown, 640 F.3d 1063, 1070 (9th Cir. 2011) (internal quotation

marks and citation omitted). An “effluent limitation [i]s ‘any

restriction established by . . . the [EPA] Administrator on

quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged from

point sources into navigable waters[.]’” Friends of the Earth,

Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 390 n.1 (4th

Cir. 2011) (quoting 33 U.S.C. § 1362(11)). In turn, an effluent

1
Congress enacted the Federal Water Pollution Control Act
in 1972; it was renamed the CWA in 1977. Nw. Envtl. Def. Ctr. v.
Brown, 640 F.3d 1063, 1069-70 (9th Cir. 2011).
2
“A point source is ‘any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, [or] well . . . from which pollutants
are or may be discharged.” Natural Res. Def. Council, Inc., 2011
WL 2712963, at *3.
 - 3 -

limitation guideline (“ELG”) is determined in light of “the best

practicable control technology currently available.” 33 U.S.C.

§ 1314(b)(1)(A).

The CWA requires the EPA to review effluent limitations, and

to revise them as appropriate, “at least every five years.” 33

U.S.C. § 1311(d). The EPA also must annually “revise, if

appropriate,” the regulations setting forth ELGs. Id. § 1314(b).

While the agency has combined these processes over the last three

decades by simultaneously promulgating guidelines that include

effluent limitations (Pls.’ Opp’n to UWAG’s Mot. to Interv.

(“Pls.’ Opp’n”) at 4), it last revised the ELGs applicable to the

steam electric point source category in 1982. (Id.; UWAG’s Stmt.

of P. and A. in Supp. of Mot. to Intervene (“UWAG’s Stmt.”) at

3.) In 2009, the EPA announced its intention to revise the steam

electric ELGs again. (UWAG’s Stmt. at 3-4.) The agency

published a plan to that effect and, as of June 2010, had

collected effluent-relevant data from UWAG members and other

electric power plants. (Id. at 4.)

The plaintiffs sued the EPA on November 8, 2010, challenging

its “fail[ure] to comply with its mandatory duty to . . . review

. . . the ELGs for the Steam Electric Power Generating category

and to revise the regulations accordingly[.]” (Pls.’ Opp’n at 6;

see also Compl. ¶¶ 3, 19.) The parties jointly moved for entry

of a consent decree the same day. (See generally Joint Mot. to

Enter Consent Decree.) The decree requires the EPA to sign 1) a
 - 4 -

notice of proposed rulemaking as to steam electric ELGs no later

than July 23, 2012, and 2) a decision taking final action

following notice and comment rulemaking no later than January 31,

2014. (Consent Decree ¶¶ 3-4.) However, the schedule “may be

extended by written agreement of the parties and notice to the

Court.” (Id. ¶ 5.) The decree makes no “admission [of a

violation of any law, rule, regulation or policy] or

determination of any issue of fact or law[.]” (Consent Decree at

2; id. ¶¶ 12, 18). Further, it “shall [not] be construed to

limit or modify the discretion accorded EPA by the [CWA] or by

general principles of administrative law” in the course of

rulemaking. (Id. ¶ 15.)

On November 16, 2010, UWAG moved to intervene as a defendant

“in order to express its views on the rulemaking schedule” the

parties proposed and to challenge the court’s subject matter

jurisdiction over the complaint. (UWAG’s Mot. at 2.) UWAG,

whose members are subject to EPA regulation, argues that the

schedule “will impede EPA’s ability to provide an adequate

comment period” (UWAG’s Stmt. at 14), and prevent any evaluation

of the court’s jurisdiction. (Id. at 8.) UWAG also surmises

that any revisions “will significantly impact the permitting and

operation of facilities owned by UWAG members and could”

substantially burden UWAG members’ economic interests. (Id. at

5.) Both parties have opposed intervention because UWAG’s

concerns “are not only speculative but also premature.” (Pls.’
 - 5 -

Opp’n at 8.) They argue that the rulemaking schedule does not

“dictat[e] the substance of the agency’s future actions[,]” that

UWAG “will have every opportunity to participate in the lengthy

rulemaking process[,]” and that the complaint’s allegations that

the EPA has violated a non-discretionary duty are sufficient to

confer jurisdiction. (Pls.’ Opp’n at 1, 16; Def.’s Opp’n at 1-

2.) The parties also challenge UWAG’s standing to intervene.

DISCUSSION

I. JURISDICTION

The CWA’s citizen-suit provision waives “sovereign immunity

for claims [involving the Administrator’s] failure . . . to

perform any [non-discretionary] act or duty[.]” Sierra Club v.

EPA, 475 F. Supp. 2d 29, 31-32 (D.D.C. 2007) (quoting 33 U.S.C.

§ 1365(a)(2)) (emphasis removed). The Act imposes “a

nondiscretionary duty . . . only when [its] provision[s] set[]

bright-line, date-specific deadlines for specified action.”

Raymond Proffitt Found. v. EPA, 930 F. Supp. 1088, 1098 (E.D. Pa.

1996); see also Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64

(D.D.C. 2004) (stating that “[e]xpress deadlines in the [Clean

Air Act] typically create nondiscretionary duties to act”). To

compel such action, the “citizen suit must [identify] a

nondiscretionary duty that is ‘readily-ascertainable’ and not

‘only [ ] the product of a set of inferences based on the overall

statutory scheme.’” Our Children’s Earth Found. (“OCEF”) v. EPA,

527 F.3d 842, 851 (9th Cir. 2008) (quoting Sierra Club v. Thomas,
 - 6 -

828 F.2d 783, 791 (D.C. Cir. 1987)) (alteration in original).

The court has jurisdiction only if the EPA has failed to fulfill

a nondiscretionary duty. Sierra Club v. EPA, 475 F. Supp. 2d at

31.

UWAG argues that the CWA imposes no nondiscretionary duty

upon the EPA to complete its review of steam electric ELGs and

determine whether to revise them. (UWAG’s Reply at 5-6.)

However, as UWAG concedes, a “‘non-discretionary duty’ imposed by

[the CWA] is the duty to undertake the required review on the

schedule specified[.]” (UWAG’s Reply at 3.) The “EPA has an

obligation to review effluent guidelines [annually] and

limitations [every five years] for possible revision[.]” OCEF v.

EPA, 527 F.3d at 849 (emphasis added); see also 33 U.S.C.

§§ 1311(d), 1314(b). “[S]uch . . . review is mandatory.” OCEF

v. EPA, 527 F.3d at 849. (See also Pls.’ Opp’n at 6; Compl.

¶ 43.)

While “[t]he court does not know exactly what Congress

meant” in directing the EPA to revise ELGs “if appropriate,” even

the EPA concedes that 28 years “is clearly too long when matched

with [the CWA’s] stated deadlines and . . . provisions for

review[.]” Raymond Proffitt Found., 930 F. Supp. at 1099-100;

see also 33 U.S.C. §§ 1311(d), 1314(b) (specifying annual and

quinquennial deadlines for reviewing ELGs and effluent

limitations.) (See also Pls.’ Opp’n at 6 (quoting the EPA’s

October 29, 2009 notice stating that “[t]he current [ELGs], which
 - 7 -

were last updated in 1982, do not adequately address the

pollutants being discharged and have not kept pace with changes

that have occurred in the electric power industry over the last

three decades.”).) The “ultimate decision whether to revise the

guidelines and limitations is discretionary[.]” OCEF v. EPA, 527

F.3d at 849 (emphasis removed). However, “[i]t is rudimentary

administrative law that discretion as to the substance of the

ultimate decision does not confer discretion to ignore the

required procedures of decisionmaking.” Bennett v. Spear, 520

U.S. 154, 172 (1997). The plaintiffs complained that despite its

duty to do so, the EPA has not completed the requisite review of

effluent limitations and ELGs for over a quarter-century.

(Compl. ¶ 43.) “Nothing more is needed to invoke this Court’s

jurisdiction.” (Pls.’ Opp’n at 15.) See also El-Shifa Pharm.

Indus. Co. v. United States, 607 F.3d 836, 850 (D.C. Cir. 2010)

(characterizing dismissal under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction as generally

“reserved for complaints resting on truly fanciful factual

allegations[]”) (emphasis in original) (internal citation

omitted). Thus, the court has subject-matter jurisdiction over

this case; the proposed rulemaking schedule has no impact on that

assessment. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

587 (1999) (“in most instances subject-matter jurisdiction will

involve no arduous inquiry”); see also Curran v. Holder, 626 F.

Supp. 2d 30, 32 (D.D.C. 2009) (“the Court is obligated to
 - 8 -

determine whether it has subject-matter jurisdiction in the first

instance.”) (internal quotation marks and citation omitted).

The central open question is whether UWAG may intervene as

of right or permissively, or not intervene at all. See Fed. R.

Civ. P. 24(a)(2), (b)(1)(B), (b)(3).

II. INTERVENTION AS OF RIGHT

A prospective intervenor as of right must fulfill all four

prerequisites enumerated in Federal Rule of Civil Procedure

24(a). United States v. Philip Morris USA Inc., 566 F.3d 1095,

1146 (D.C. Cir. 2009). These include (1) timely moving to

intervene, (2) having an interest relating to the subject of the

action (3) which would be impaired or impeded by the disposition

of the action and (4) which no party adequately represents. Id.

The parties contend that such an intervenor must also meet

Article III standing requirements4 (Pls.’ Opp’n at 8, 10; Def.’s

Opp’n at 5), while UWAG argues that “the Article III standing and

4
See, e.g., Fund for Animals, Inc. v. Norton, 322 F.3d
728, 731-32 (D.C. Cir. 2003) (“[I]n addition to establishing its
qualification for intervention under Rule 24(a)(2), a party
seeking to intervene as of right must demonstrate that it has
standing under Article III of the Constitution.”); Philip Morris,
566 F.3d at 1146; Ctr. For Biological Diversity v. EPA, 274
F.R.D. 305, 308 (D.D.C. 2011); Akiachak Native Cmty. v. U.S.
Dep’t of Interior, 584 F. Supp. 2d 1, 5 (D.D.C. 2008).
 - 9 -

Rule 24(a)(2) interest requirements are [not] additive”5 (UWAG’s

Reply at 8). The outcome here is the same under either view.

A. Standing

An association has standing to sue on behalf of its members

“only if (1) at least one of its members would have standing to

sue in [it]s own right, (2) the interests the association seeks

to protect are germane to its purpose, and (3) neither the claim

asserted nor the relief requested requires that an individual

member of the association participate in the lawsuit.”6 Cnty. of

San Miguel, Colo. v. MacDonald, 244 F.R.D. 36, 43 (D.D.C. 2007).

UWAG’s interest in this litigation appears to be “germane to its

purpose.” Id. (See also UWAG’s Stmt. at 6 (“UWAG’s purpose is

to participate on behalf of its members collectively in EPA’s

rulemakings under the CWA and in litigation arising from those

rulemakings.”).) Further, “neither the claim asserted nor the

relief requested requires that an individual member of the

association participate in the lawsuit.” Cnty. of San Miguel,

244 F.R.D. at 43.

5
See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d
228, 233 (D.C. Cir. 2003) (“[A]ny person who satisfies Rule 24(a)
will also meet Article III’s standing requirement.”); Akiachak
Native Cmty., 584 F. Supp. 2d at 7.
6
Neither the parties nor UWAG has briefed whether the
organization has standing as an association to sue on behalf of
its members. (See UWAG’s Stmt. at 5 (“UWAG seeks . . . to
protect its members’ interest in EPA’s rulemaking[]”).)
 - 10 -

To establish constitutional standing, a UWAG member must

demonstrate “(1) an injury-in-fact that is (a) concrete and

particularized and (b) actual and imminent, (2) causation, and

(3) redressability.” In re Endangered Species Act (“ESA”)

Section 4 Deadline Litig., 270 F.R.D. 1, 5 (D.D.C. 2010) (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). UWAG

argues that upon entry of the consent decree, “industry’s views

on the consequences of the schedule now and as the schedule may

be adjusted in the future would not be heard,” and that “industry

may spend . . . billions of dollars” “[i]f the result[ing rule]

is more stringent than the evidence justifies[.]” (UWAG’s Stmt.

at 16.) However, UWAG states that “EPA and UWAG have been

engaged for months in collecting data on wastewater from power

plants.” (Id. at 13.) The decree would preclude UWAG neither

from continuing to “participat[e] in the rulemaking [n]or from

challenging the final rule that emerges.” Envtl. Def., 329 F.

Supp. 2d at 68. Further,

where, as here, [UWAG] . . . can offer no
evidence that (1) [its] views will not be
taken into account in the administrative
process . . . ; (2) [its] interests will be
prejudiced as a result of the timetable . . .
contained in the Consent Decree; or (3) EPA
is under any obligation imposed by the
proposed Consent Decree to issue certain
substantive regulations, or any regulations
at all, there is simply no basis for
concluding that intervention is warranted.

Cronin v. Browner, 898 F. Supp. 1052, 1063 (S.D.N.Y. 1995).
 - 11 -

Because UWAG has not articulated any concrete,

particularized, actual, and imminent injury it or its members

will suffer upon entry of the consent decree, it has not

demonstrated an “impairment sufficient to satisfy . . .

constitutional standing[.]” Envtl. Def., 329 F. Supp. 2d at 68.7

Thus, none of UWAG’s members would have standing to sue in its

own right, and UWAG lacks standing to intervene on its members’

behalf. Even if UWAG were able to satisfy the standing

requirements, it has not met all of the Rule 24 prerequisites for

intervention as of right.8

B. Legally protectable interest

Prospective intervenors must demonstrate an interest

relating to the subject of the action. Philip Morris, 566 F.3d

at 1146. This prerequisite is satisfied “not [by] any interest

the applicant can put forward, but only [by] a legally

protectable one.” Roane v. Gonzales, 269 F.R.D. 1, 3 (D.D.C.

2010) (internal quotation marks and citation omitted) (emphasis

7
“[P]otential intervenors must demonstrate ‘prudential’ as
well as constitutional standing.” In re Vitamins Antitrust Class
Actions, 215 F.3d 26, 29 (D.C. Cir. 2000). “Prudential standing
requires that the [movant’s] complaint fall within the zone of
interests to be protected or regulated by the statute or
constitutional guarantee in question.” Pai v. U.S. Citizenship
and Immigration Services, 810 F. Supp. 2d 102, 108 (D.D.C. 2011).
Because UWAG has not satisfied the requirements of constitutional
standing, the issue of prudential standing need not be reached.
8
The parties do not dispute that UWAG’s motion was filed
timely. Nor do they appear to dispute that they do not
adequately represent UWAG’s interests.
 - 12 -

in original). A legally protectable interest is “‘of such a

direct and immediate character that the intervenor will either

gain or lose by the direct legal operation and effect of the

judgment.’”9 In re ESA, 270 F.R.D. at 5 (quoting United States

v. Am. Tel. and Tel. Co., 642 F.2d 1285, 1291-92 (D.C. Cir.

1980)).

UWAG has not articulated a legally protectable interest in

the proposed rulemaking schedule. UWAG asserts its interest in

allowing enough time for the EPA to complete the tasks attendant

to rulemaking. (UWAG’s Stmt. at 15.) It argues that the

schedule will determine “how much the rule will cost, what the

effects will be on electric power supply and reliability, and

whether the electric utility industry can [timely] comply[.]”

(Id. at 12.) “[S]having more time” will rush the EPA through the

rulemaking process,10 the argument continues, stripping UWAG of

9
No judgment on the merits is at issue here. Am. Nurses
Ass’n v. Jackson, Civil Action No. 08-2198 (RMC), 2010 WL
1506913, at *1 (D.D.C. Apr. 15, 2010) (quoting Local Number 93,
Int’l Ass’n of Firefighters, AFL-CIO, C.L.C. v. City of
Cleveland, 478 U.S. 501, 519 (1986)). “[B]y entering this
consent decree the Court is only accepting the parties’ agreement
to settle, not adjudicating” the merits of the plaintiffs’
position. Id. Even if the consent decree were construed to have
adjudicated the plaintiffs’ claim, the decree would not impair or
impede UWAG’s interests, as is explained below.
10
As an example of “how badly an agency can do when it
lacks time,” UWAG cites the regulations the EPA completed for
stormwater discharges from construction and development. (UWAG’s
Stmt. at 14.) There, according to UWAG, the EPA “asked a
district court for four years to promulgate the rules” and was
granted only three. Here, the consent decree accords EPA all the
time it has requested and provides a schedule subject to
 - 13 -

its right to comment and the EPA of time needed to “do justice”

to comments made.11 (Id. at 14.) Though these concerns are

not insubstantial . . . the Court cannot now
gauge the adequacy, or lack thereof, of the
schedule. Should haste make waste, the
resulting regulations will be subject to
successful challenge.12 If EPA has correctly

estimated the speed with which it can do the
necessary data gathering and analyses,
harmful emissions will be sooner reduced. If
EPA needs more time to get it right, it can
seek more time.

modification. (Consent Decree ¶ 5.) Such flexibility undermines
UWAG’s argument that the “EPA cannot foresee how much time will
be required,” as the agency need not make any projection now.
(UWAG’s Reply at 19.)
11
UWAG argues that the EPA “has failed to allot sufficient
time and resources to address UWAG’s concerns [as to] data and
system variability.” (UWAG’s Reply at 11.) To support the
argument, UWAG asserts that “EPA’s decision not to broaden its
sampling was at least partially driven by scheduling concerns.”
(Id.) Such speculation offers no evidence of the claim that
“UWAG’s experience in this very rulemaking demonstrates that
EPA’s rush to complete the rulemaking has curtailed the
industry’s procedural rights and increased its costs[.]” (Id. at
10.)
12
UWAG cites Natural Res. Def. Council v. Costle, 561 F.2d
904, 909 (D.C. Cir. 1977) for the proposition that intervention
may not be denied under Rule 24(a)(2) simply because “applicants
may vindicate their interests in some later, albeit more
burdensome, litigation.” (See UWAG’s Reply at 9.) However,
Costle is inapposite. “Here, the Court’s rationale for denying
intervention is not based on the premise that the Movant has a
legally protected interest, but can protect those interests at a
later time. Rather, . . . the Movant [has not articulated] a
legally protected interest [at all] . . . and [its] . . . rights
are not impaired in this case.” Maverick Entertainment Group,
Inc. v. Does 1-2,115, Civil Action No. 10-569 (BAH), 2011 WL
4351354, at *5 (D.D.C. Sept. 19, 2011).
 - 14 -

Am. Nurses Ass’n v. Jackson, Civil Action No. 08-2198 (RMC),

2010 WL 1506913, at *2 (D.D.C. Apr. 15, 2010). Because UWAG has

not demonstrated that “the suggested timetable is inadequate or

that modifications to the timetable are likely to be necessary,

and that any such inadequacies or modifications would” injure or

impair UWAG’s interests, Envtl. Def., 329 F. Supp. 2d at 68, UWAG

has made no showing that it “will . . . lose” if the decree is

entered. In re ESA, 270 F.R.D. at 5.

“If the review’s speed causes substantive deficiencies in

any final rules, applicants then might have a protected interest.

But mere speculation[] . . . is not enough.” OCEF v. EPA, No. C

05-05184, 2006 WL 1305223, at *3 (N.D. Cal. May 11, 2006). Here,

UWAG’s scheduling concerns appear to be both unsupported and

premature. The risk of rushing seems diminished since the data

gathering has already begun, and the proposed schedule is subject

to easy modification13 and is only two months shorter than a

13
UWAG asserts that “it will be hard to change the
schedule,” that “Court proceedings over scheduling will then use
up more of EPA’s time,” and that “30 months is unlikely to be
enough time for EPA to collect and analyze the data it needs.”
(UWAG’s Stmt. at 14, 16; UWAG’s Reply at 12.) Actually, it is
possible that UWAG’s intervention efforts are using up more of
EPA’s time that it could be spending addressing UWAG’s comments
and the “EPA’s broad policy goals of protecting human health and
the environment[.]” Riverkeeper, Inc. v. Whitman, No. 93 Civ.
0314, 2001 WL 1505497, at *5 (S.D.N.Y. Nov. 27, 2001). But, if
more time is needed for the parties to assess or address UWAG’s
data, the schedule may be modified simply “by written agreement
of the parties and notice to the Court.” (Consent Decree ¶ 5.)
See also OCEF v. EPA, No. C 05-05184, 2006 WL 1305223, at *3 n.3
(N.D. Cal. May 11, 2006) (“Applicants . . . fail to acknowledge
that the decree’s schedule is not set in stone.”). And UWAG
 - 15 -

schedule the EPA “previously and voluntarily announced.” (See

UWAG’s Stmt. at 3-4; Def.’s Opp’n at 2; Pls.’ Opp’n at 1, 9 (“the

agency has a substantial head start [because it] already has

published lengthy reports in 2006, 2008, and 2009 that

characterize power plant discharges and the wastewater treatment

control technologies that are available to address them”).)

Also, UWAG has been, and by most accounts will continue to be,

actively engaged in the rulemaking process. (See, e.g., UWAG’s

Stmt. at 4 (“[t]o gather more data for the rulemaking, in June

2010 EPA distributed a voluminous, complex, detailed

questionnaire to electric power plants, many of which are owned

by UWAG members”); id. at 13 (“EPA and UWAG have been engaged for

months in collecting data on wastewater from power plants.”).)14

UWAG has not asserted any legally protectable interest in the

parties’ proposed rulemaking schedule.

C. Impairment of interest

UWAG’s alleged injury does not meet Rule 24(a)’s

impairment-of-interest requirement. See Envtl. Def., 329 F.

Supp. 2d at 68. “Whether a proposed intervenor is ‘so situated

that disposing of the action may as a practical matter impair or

makes no showing that as it continues to provide data during the
review process, it could not ask the parties upon a showing of
good cause to seek a needed schedule modification.
14
See also Riverkeeper, 2001 WL 1505497, at *4 (describing
applicants who “paint[ed] a picture of a protracted exclusion
from the rulemaking process” despite having “regular[ly] and
substantial[ly] participa[ted]” in it).
 - 16 -

impede its ability to protect its interest[]’ is determined by

‘looking to the practical consequences of denying intervention,

even where the possibility of future challenge to the regulation

remain[s] available.’” Roane, 269 F.R.D. at 4 (quoting Fed. R.

Civ. P. 24(a)(2); Fund for Animals, Inc. v. Norton, 322 F.3d 728,

735 (D.C. Cir. 2003)). UWAG does not dispute that it later may

challenge the revised ELGs, if any, and does not explain why the

“EPA’s rulemaking, which is in full progress [with UWAG’s

participation] already,” will not “continue apace, independent of

this litigation.” (UWAG’s Stmt. at 9.) UWAG therefore has not

demonstrated any impairment of interest warranting

intervention.15 UWAG’s failure to satisfy the interest and

impairment requirements preclude its intervention as of right in

this matter.

III. PERMISSIVE INTERVENTION

Alternatively, UWAG seeks to intervene under Rule 24(b).16

The Rule “provides for permissive intervention on a timely

motion, where the applicant ‘has a claim or defense that shares

15
UWAG also argues that it need not “prove specifically how
a schedule will impair its rights in the future.” (UWAG’s Reply
at 9.) Here, however, UWAG has not offered any basis for the
court to conclude that it may suffer impairment.
16
“[T]here is substantial confusion as to whether the D.C.
Circuit’s reading of Rule 24(b) allows for permissive
intervention where the would-be intervenor lacks Article III
standing.” See Ctr. for Biological Diversity, 274 F.R.D. at 313
(collecting cases). For this reason, UWAG’s motion for
permissive intervention will be evaluated on its merits.
 - 17 -

with the main action a common question of law or fact.’” In re

ESA, 270 F.R.D. at 5 (quoting Fed. R. Civ. P 24(b)(1)(B)). A

court considers “whether the facts necessary to assert [the

intervenor’s] claim are essential[ly] the same facts as those

necessary to establish [an existing party’s] claim,” Roane, 269

F.R.D. at 5 (internal quotation marks and citation omitted), and

whether the intervention will “unduly delay or prejudice the

adjudication of the original parties’ rights.” Fed. R. Civ. P.

24(b)(3). Courts in this district have also considered “whether

parties seeking intervention will significantly contribute to

. . . the just and equitable adjudication of the legal question

presented.” Ctr. for Biological Diversity, 274 F.R.D. at 313

(internal quotation marks and citation omitted).

UWAG contends that its timely motion addresses “only . . .

questions of fact and law raised by EPA’s and [the plaintiffs’]

court papers.” (UWAG’s Stmt. at 18.) UWAG’s claim certainly

presents common questions of law and fact with the main action,

because it challenges a rulemaking schedule the parties have

proposed under the Clean Water Act. However, as UWAG admits

(UWAG’s Mot. at 2; UWAG’s Stmt. at 18; UWAG’s Reply at 5-6), it

“seeks to intervene for the very purpose of pressing the argument

that the court lacks subject-matter jurisdiction. This

circumstance certainly is unusual, but it does not warrant

permissive intervention.” Envtl. Defense, 329 F. Supp. 2d at 69.

Inviting a challenge to the subject matter jurisdiction that this
 - 18 -

opinion has already confirmed invites nothing but more delay in

bringing closure to an overdue rulemaking process. UWAG’s

participation would not significantly help to resolve relevant

legal issues. Rather, “intervention is likely to unduly delay

the adjudication of the original parties’ rights[,]” since “the

instant motion for intervention and the . . . briefing

surrounding it has already delayed . . . consideration of the

. . . consent decree.” D.C. v. Potomac Elec. Power Co., Civil

Action No. 11-00282 (BAH), 2011 WL 6000851, at *6 (D.D.C. Dec. 1,

2011). Thus, the motion for permissive intervention will be

denied.

CONCLUSION

UWAG has failed to demonstrate its standing and any

impairment of a legally protectable interest in this litigation

if the consent decree is entered. UWAG’s intervention to

challenge an already settled jurisdictional issue would cause

unwarranted delays. Thus, UWAG’s motion to intervene will be

denied. A separate Order accompanies this Memorandum Opinion.

SIGNED this 18th day of March, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge