United States v. MIEC ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3404
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United States of America; *
State of Missouri, *
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Plaintiffs – Appellees, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Metropolitan St. Louis Sewer District, *
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Defendant – Appellee, *
*
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Missouri Coalition for the Environment *
Foundation, *
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Intervenor – Appellee, *
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Missouri Industrial Energy Consumers, *
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Intervenor – Appellant. *
*
___________ *
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Metropolitan St. Louis Sewer District, *
*
Counter Claimant, *
*
v. *
*
State of Missouri, *
*
Counter Defendant. *
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Submitted: May 14, 2009
Filed: June 22, 2009
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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
The Missouri Industrial Energy Consumers (MIEC), an association of
businesses formed to address its members' concerns about utility services, moved to
intervene in an enforcement action filed against the Metropolitan St. Louis Sewer
District (District) by the United States and the State of Missouri under the Clean
Water Act, 33 U.S.C. § 1251 et seq. The district court1 denied the motion for lack of
standing. MIEC appeals, and we affirm.
I.
The District manages a sewer and wastewater system for approximately 1.4
million residents and other users in the St. Louis area. The complaint filed by the
United States and the State of Missouri alleges that from 2000 to 2005, the District
discharged raw sewage into local waterways and otherwise violated its state issued
permits. It alleges that the discharges have resulted from "inadequate flow capacity
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
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in the collection system and at the wastewater treatment plants; . . . aged and corroded
pipes and force mains; illegal and improper cross-connections between sanitary and
stormwater sewers; [and] poor maintenance," among other causes. The plaintiffs seek
civil penalties for each violation and an injunction directing the District to come into
"permanent and consistent compliance" with the Clean Water Act (Act) and to
minimize the imminent and substantial risks to human health posed by the discharge
of raw sewage.
Based on these alleged violations, the Missouri Coalition for the Environment
Foundation (Coalition), a nonprofit organization dedicated to preserving and
enhancing the state's environment, served the District with notice of its intent to file
a citizen suit under the Act. 33 U.S.C. § 1365(b)(1)(A) (2009). After the United
States and Missouri filed this action, the Coalition sought to intervene under §
1365(b)(1)(B), which grants citizens a right to intervene if the government is already
prosecuting an enforcement action. See Fed. R. Civ. P. 24(a)(1). The district court
granted the Coalition's unopposed motion to intervene.
MIEC is a general business trade association with seven members who
discharge into the District's wastewater system, and pay user rates and fees amounting
to 5% of the District's revenues. These members are Anheuser-Busch, The Boeing
Company, Chrysler Corporation, Hussmann Corporation, Monsanto, Pfizer, and
Procter & Gamble. MIEC members hold seven of the 220 industrial wastewater
discharge permits issued by the District. Such permits authorize the holder to
discharge a specific volume of wastewater at a specified rate and require monitoring
of the volume and pollutant levels in the wastewater discharged.
MIEC filed a motion to intervene in this case as a neutral party for the limited
purpose of participating in "discussions, negotiations, mediations, hearings, trials
and/or settlements" relating to the remedy. More specifically, MIEC wants to be a
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party to proceedings and discovery regarding "the scope of the remedial work
contemplated, the time frame when the proposed remedial work needs to be
completed, the environmental impacts . . . , and the financing options regarding the
proposed remedial work." It expressed concern that any injunction or consent decree
imposed on the District might result in increased user rates and fees for its members.
It also prayed that the court enter an order "ensuring that the remedy is protective of
the environment, compliant with the Clean Water Act, and will not unreasonably
burden the [District's] ratepayers." MIEC argued that it had a statutory right to
intervene under Federal Rule of Civil Procedure 24(a)(1) and 33 U.S.C. §
1365(b)(1)(B), as the Coalition had. It also sought to intervene as a matter of right
under Rule 24(a)(2) and permissively under Rule 24(b). While the District supports
MIEC's intervention, the United States and the Coalition oppose it. The State of
Missouri takes no position on the issue.
The district court denied the motion after determining that MIEC lacked the
Article III standing necessary for intervention because its alleged injuries were too
speculative and not particularized. The denial of a motion to intervene of right is
immediately appealable as a final judgment, South Dakota v. U.S. Dep't of Interior,
317 F.3d 783, 785 n.2 (8th Cir. 2003), and our review is de novo. Med. Liab. Mut.
Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007).
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II.
In our circuit, a party seeking to intervene must establish Article III standing
in addition to the requirements of Rule 24.2 Mausolf v. Babbitt, 85 F.3d 1295, 1300
(8th Cir. 1996). To demonstrate standing, a plaintiff must clearly allege facts showing
an injury in fact, which is an injury to a legally protected interest that is "concrete,
particularized, and either actual or imminent." Curry v. Regents of the Univ. of
Minn., 167 F.3d 420, 422 (8th Cir. 1999). The purpose of the imminence requirement
is "to ensure that the alleged injury is not too speculative . . . [and] that the injury is
certainly impending." Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992)
(quotation omitted). The plaintiff must also show that the alleged injury is fairly
traceable to the defendant's conduct and that a favorable decision will likely redress
the injury. Id. at 560–61.
When a party seeks to dismiss a suit for lack of standing, we "must accept as
true all material allegations of the complaint, and must construe the complaint in favor
of the complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975). The same
standards apply when a party opposes a motion to intervene. Rule 24(c) requires an
intervening party to submit a "pleading that sets out the claim or defense for which
2
MIEC points out the circuit split regarding whether an intervenor must
demonstrate standing. Compare San Juan County v. United States, 503 F.3d 1163,
1172 (10th Cir. 2007) (intervenor need not have standing "so long as another party
with constitutional standing on the same side as the intervenor remains in the case"),
and Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991) (citing U.S. Postal
Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (once the existence of a case or
controversy is established between existing parties, there is no need to require
standing of intervenor)), with Mausolf, 85 F.3d 1295 (intervenor asks court to decide
merits of a dispute and therefore must have standing), and Building & Constr. Trades
Dep't, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (intervenor
participates on equal footing with original parties and must meet same Article III
requirements). MIEC urges us to revisit Mausolf, but we see no reason to do so.
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intervention is sought." MIEC did not submit a pleading asserting either a claim or
defense, but it did submit a statement of interest explaining why it seeks intervention
and requesting the right to participate in settlement discussions.
Appellees argue that MIEC's failure to submit a pleading is sufficient to deny
its motion to intervene, but we conclude that the statement of interest satisfies Rule
24(c) because it provides sufficient notice to the court and the parties of MIEC's
interests. Accord Beckman Indus. v. Int'l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992);
Spring Constr. Co., Inc. v. Harris, 614 F.2d 374, 376–77 (4th Cir. 1980). MIEC also
submitted affidavits from representatives of four member companies explaining their
concerns about the impact of this lawsuit on their operations.
In the district court MIEC expressed concern that the District would increase
sewer rates in order to pay civil penalties and to fund the improvements necessary to
bring its system into compliance. MIEC also asserted interests in a reliable and viable
sewer system and in the quality of the local environment. The district court
determined that because MIEC sought to intervene as a neutral party it could not
assert harm to its members' environmental interests and that it was a matter of "pure
conjecture" whether the lawsuit would affect the reliability of the sewer system. It
also concluded that sewer rates would increase only if (1) the District were found
liable, (2) the court were to impose civil penalties or an injunction requiring
significant infrastructure improvements, and (3) the District were to decide to pass on
the costs of compliance to ratepayers rather than raising capital in some other way.
The district court conceded that this sequence of events would not be impossible, but
concluded that it was too speculative to create standing.
At the outset we note that MIEC cannot assert environmental injury on behalf
of its members. An association has standing to assert the claims of its members if "the
interests it seeks to protect are germane to the organization's purpose." Hunt v. Wash.
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Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). MIEC nowhere states that
environmental protection or aesthetic and recreational interests are relevant to its
members’ purpose in joining together. Its brief indicates that MIEC's purpose is "to
represent its industrial members' unique commercial interests in utility matters."
Additionally, as the district court noted, MIEC's asserted neutrality as to whether the
District violated the Clean Water Act is inconsistent with an assertion that the harm
to regional rivers and streams injures its members.
MIEC next asserts an interest in the reliability and viability of the District's
system, but it does not explain how any remedy that might be imposed in this case will
threaten the reliability of the system. The complaint seeks to improve reliability in
that it seeks to remedy the poor maintenance and insufficient capacity causing the
permit violations which have occurred. In addition, MIEC shares its interest in the
reliability of the system with all of the 1.4 million users, so it is not the kind of
concrete, particularized interest that establishes standing. See Nolles v. State Comm.
for the Reorg. of Sch. Dists., 524 F.3d 892, 900 (8th Cir. 2008) (generalized grievance
shared in common by all voters is not a personalized injury).
MIEC is properly situated to assert the utility related economic interests of its
members, but we agree with the district court that the possibility of increased sewer
rates is not an imminent injury. MIEC argues that each step in the sequence of events
found unlikely by the district court is instead highly probable. First, it asserts that
most enforcement cases of this type result in settlement and a consent decree rather
than a finding of liability after trial. It also contends that any remedy imposed would
almost certainly require infrastructure upgrades because plaintiffs' complaint focuses
on infrastructure deficiencies as the cause of the Clean Water Act violations. See
South Dakota v. Ubbelohde, 330 F.3d 1014, 1024–25 (8th Cir. 2003) (looking at relief
sought by plaintiff to determine whether its prevailing would cause imminent injury
to a potential intervenor). MIEC argues there is "nothing remote or speculative" about
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whether the District will pass on the costs of compliance to its customers, for it has
stated that it "does not have sufficient funds to prevent the non-compliance alleged in
Plaintiffs' Complaint or to satisfy any judgment that may be entered against it in this
lawsuit, without raising its wastewater user charges or user fees."
The context of the District's statement shows, however, that it is not an
admission that it will raise its rates. The statement was part of a counterclaim it filed
against the State of Missouri, alleging that because state law limits its ability to raise
rates,3 and because these user fees are its only revenue stream, the state is liable for
the entire cost of any judgment against the District as provided in 33 U.S.C. § 1319(e).
The District was not expressing an intent to raise rates, but declaring that it considers
itself constrained from doing so. Thus, it is questionable that any consent decree
would be able to determine the means by which the District would pay for system
improvements.
The District is also constrained by its own charter from committing to raise fees
as part of any enforceable consent decree, even if it were inclined to do so. First, the
District's staff must propose a rate increase to the Board of Trustees and the Rate
Commission. After public hearings, the Rate Commission may issue a rate
recommendation report to the board, which can reject the recommendation if its finds
that it "imposes an unfair or excessive burden on one or more classes of ratepayers."
The constraints on the District's ability to raise rates, combined with the
District's pursuit of indemnification from the state for the cost of complying with any
3
The Missouri Constitution prohibits political subdivisions such as the District
"from increasing the current levy of an existing tax, license or fee . . . without the
approval of the required majority of the qualified voters of that . . . political
subdivision." See Mo. Const. art. X, § 22(a).
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judgment or consent decree, show that a rate increase is no more than a "conjectural"
or "hypothetical" outcome of this lawsuit. See Defenders of Wildlife, 504 U.S. at 560.
Moreover, any judgment or consent decree will likely establish what the District must
do to comply, rather than specify how the District will pay for the needed measures.
It would be up to the District to determine whether rate increases are necessary and
legally permissible through the process described in its charter.
MIEC argues that the circumstances creating its economic injury are no more
speculative than those in South Dakota v. Ubbelohde, 330 F.3d 1014. When the Army
Corps of Engineers (Corps) planned to release water from a South Dakota reservoir
in order to maintain flows in the Missouri River for downstream recreational and
navigational purposes, South Dakota filed for an injunction based on its interest in
protecting the fisheries in the reservoir. Id. at 1019. Several downstream entities
moved to intervene, claiming that they would be harmed if the court's ruling lead to
decreased water flow. The district court concluded that a preliminary injunction
preventing the Corps from releasing water from the South Dakota reservoir would not
cause actual or imminent injury downstream because the Corps could release water
from other reservoirs on the river. We reversed, noting that South Dakota's requested
permanent relief would require the Corps to prevent irreparable harm to fisheries
when making future decisions about management of the Missouri River "when the
harm is inflicted to benefit downstream navigation." Id. at 1024. Because such relief
might force the Corps "to reduce downstream flows in drought conditions to maintain
water levels at all of the reservoirs," we concluded that the "intervenors had presented
sufficient evidence of a threatened injury to give them standing." Id. at 1024–25.
The link between plaintiffs' requested relief and the possibility of harm to MIEC
is less direct and more contingent in this case than in Ubbelohde. Ubbelohde
concerned a single, nonfungible resource—if water were retained in the reservoir, it
could not be available for downstream use. In contrast, if plaintiffs were to prevail in
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this case MIEC would not unavoidably be harmed economically because the District
may use alternate means to pay for its compliance. In Ubbelohde, South Dakota
requested a remedy that would specifically elevate its interest in protecting fisheries
above the downstream interests in navigation. The plaintiffs' requested remedy here,
in contrast, does not seek to compel the District to fund its compliance in any
particular way and makes no reference to MIEC's asserted economic concerns.
In its reply brief MIEC argues that the eventual remedy here might affect the
terms of its members' industrial wastewater discharge permits by restricting the
volume of discharge allowed or requiring pretreatment of the wastewater. In the
district court, however, MIEC did not identify changes to industrial wastewater
discharge permits as one of its injuries. Instead, MIEC focused almost exclusively on
its interest in "making sure that [the District's] rates are maintained at reasonable
levels." Although MIEC mentioned in its district court brief that its members are
required to have industrial discharge permits, it did not place any of these permits in
the record. While MIEC did provide a hyperlink to an example permit in its reply
brief, we must consider the record and allegations as they existed in the district court.
See Minn. Fed'n of Teachers v. Randall, 891 F.2d 1354, 1360 n.9 (8th Cir. 1989).
Even if MIEC had raised this discharge permit problem in the district court,
nothing in the record suggests that the remedy sought by plaintiffs would affect these
permits. The complaint does not refer to industrial wastewater discharges as a
contributor to the overflow problem; instead it focuses on the deficient infrastructure.
MIEC contends that because infrastructure upgrades will take time to complete, the
only way that the District could readily comply with an injunction from further illegal
discharges is by restricting the wastewater volume released into its system by permit
holders. This argument assumes without basis that the court will impose injunctive
relief insensitive to the longer term nature of the needed upgrades, rather than
imposing a compliance schedule. It is even more unlikely that an enforcement action
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which focuses on insufficient system capacity would require wastewater dischargers
to pretreat their wastewater, because pretreatment would address water quality, not
quantity. MIEC notes that consent decrees in other enforcement cases have included
terms affecting industrial wastewater discharge permit holders, but whether an order
or consent decree in this case would affect these permits is a matter of speculation and
therefore insufficient to support standing.
We conclude that MIEC has not adequately alleged that it will suffer a concrete
and particularized injury. In addition, MIEC does not even attempt to establish that
its injury is fairly traceable to the challenged action and that its injury is likely to be
redressed by a favorable decision—two other elements of Article III standing that a
party invoking federal jurisdiction must show. Defenders of Wildlife, 504 U.S. at
561. MIEC's neglect of these elements, together with its failure to demonstrate injury
in fact, confirms our conclusion that it lacks standing to intervene.
III.
Aside from the question of standing, there is the question whether MIEC has
a right to intervene under either Rule 24(a)(1) or 24(a)(2). Rule 24(a)(1) allows
intervention as a matter of right when a federal statute confers an "unconditional right
to intervene" on the moving party. MIEC contends that it has such a right under 33
U.S.C. § 1365(b)(1)(B), which states that "any citizen may intervene as a matter of
right" if the government is already diligently prosecuting an enforcement suit under
the Clean Water Act. MIEC argues that the Act's broad definition of "citizen" as "a
person or persons having an interest which is or may be adversely affected," id. §
1365(g), allows intervention as a defendant or a neutral. MIEC cites a Sixth Circuit
decision that allowed a party to intervene as a defendant in a Clean Water Act
enforcement action based on a broad view of § 1365(b)(1)(B). See Ohio ex rel.
Brown v. Callaway, 497 F.2d 1235, 1242–43 (6th Cir. 1974).
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Section 1365(b)(1)(B) must be interpreted consistent with the rest of the Act's
citizen suit provision, however. The Act creates a private right of action whereby
"any citizen may commence a civil action on his own behalf against" any person who
is alleged to be in violation of the Act. Id. § 1365(a)(1). A private action may not be
commenced, however, "if the Administrator or State has commenced and is diligently
prosecuting a civil or criminal action . . . to require compliance . . . , but in any such
action in a court of the United States any citizen may intervene as a matter of right."
Id. § 1365(b)(1)(B). The right to intervene is conferred in the same sentence that
limits the rights of citizens who would otherwise bring private enforcement actions,
which suggests that Congress intended to confer that right only on those particular
citizens. MIEC's reading of the Act would mean that any ratepayer whose financial
interests might be adversely affected by a government filed enforcement action and
who could show standing could intervene as of right. Such a plenary right of
intervention would make these enforcement actions unmanageable. We therefore
conclude that the better interpretation of § 1365(b)(1)(B), is that only a citizen whose
suit has been displaced by the government action is entitled to intervene.
Identical intervention provisions in the Safe Drinking Water Act and Clean Air
Act have been interpreted not to encompass entities seeking to intervene as
defendants. See 42 U.S.C. § 300j-8(b)(1)(B); id. § 7604(b)(1)(B). In United States
v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999), the court held that a group of
water ratepayers seeking to block government enforcement of the Safe Drinking
Water Act could not intervene under a provision identical to § 1365(b)(1)(B) because
private suits under that statute were limited to parties seeking to enforce standards,
and the right to intervene must be similarly limited. The Third Circuit rejected an
attempt by a group of state legislators to intervene as defendants in an action under the
Clean Air Act because the "citizen suit provision of the Clean Air Act provides a right
to intervene to enforce the law; it does not confer a right to intervene on behalf of an
alleged violator or to seek to inhibit enforcement." Del. Valley Citizens' Council for
Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982).
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These cases involved entities seeking to block enforcement, which is not the
case here, at least on the face of MIEC's statement of interest. Intervention by an
avowedly neutral party would be inconsistent with our requirement that a party may
intervene under § 1365(b)(1)(B) only by filing a complaint in intervention that
sufficiently alleges a violation of the Act. See United States v. Metro. St. Louis Sewer
Dist., 883 F.2d 54, 55–56 (8th Cir. 1989). The Second Circuit has limited intervention
under § 1365(b)(1)(B) on similar grounds, by holding that a citizen group may not
intervene in an action brought by the United States to enforce a provision of the Act
that is outside the scope of the Act's citizen suit provision. United States v. Hooker
Chems. & Plastics Corp., 749 F.2d 968, 978 (2d Cir. 1984). Since a citizen is only
able to join a government action to enforce a provision if it would be able to bring that
action itself under § 1365(a), a citizen should not be able to intervene when it is not
seeking to enforce the Act at all.
We conclude that the Clean Water Act requires citizens seeking to intervene
under § 1365(b)(1)(B) to show that they are able to bring a private enforcement action
in the first instance. MIEC's dominant concerns about the expense of the District
coming into compliance strongly suggests that it would be disinclined to file an
enforcement action. Moreover, MIEC lacks the organizational standing to assert its
members' alleged environmental interests, which would be required for it to file a
citizen suit under § 1365(a). Accordingly, MIEC is excluded from the
§ 1365(b)(1)(B) right of intervention and cannot intervene under Rule 24(a)(1).
Nor can MIEC establish a right to intervene under Rule 24(a)(2), which allows
intervention by anyone who "claims an interest relating to the property or transaction
that is the subject of the action, and is so situated that disposing of the action may as
a practical matter impair or impede the movant's ability to protect its interest, unless
existing parties adequately represent that interest." See also Mausolf, 85 F.3d at 1299.
For the purposes of Rule 24(a)(2), an asserted interest must be "significantly
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protectable," see Donaldson v. United States, 400 U.S. 517, 531 (1971), which has
been interpreted to mean "legally protectable." See New Orleans Pub. Serv., Inc. v.
United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984) (en banc). General
economic interests are not protectable and cannot serve as the basis for intervention.
See id. (holding that an economic interest in low electricity prices does not qualify as
a significantly protectable interest); Greene v. United States, 996 F.2d 973, 976 (9th
Cir. 1993) (even a significant economic stake in the outcome of the litigation is not
a significantly protectable interest). In Curry v. Regents of the University of
Minnesota, we held that student groups seeking to intervene in support of the existing
system by which the university distributed funds to student groups asserted only an
economic interest that did not "rise to the level of a legally protectable interest
necessary for mandatory intervention." 167 F.3d at 422.
A ratepayer's interest in reasonable fees is not legally protectable.4 For
example, the First Circuit denied a motion to intervene by a group of electricity
customers who were concerned that a lawsuit would increase their rates, noting that
"[i]t is settled beyond peradventure . . . that an undifferentiated, generalized interest
in the outcome of an ongoing action is too porous a foundation on which to premise
intervention as of right. . . . After all, every electricity consumer . . . and every person
who does business with any electricity consumer yearns for lower electric rates." Pub.
Serv. Co. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998). Consistent with this principle,
farm interests could not intervene to defend their water district against claims that the
district had operated without the proper permits because they asserted only economic
interests in the district's services as opposed to property or other legal rights. See
United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 710 (11th Cir. 1991).
4
MIEC asserts on appeal that its members have legally protectable interests in
their industrial wastewater discharge permits, but they did not raise this contention in
the district court so we need not consider it. Furthermore, the record does not show
that this action threatens their interests in the wastewater permits.
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MIEC must also demonstrate that the subject matter of the action affects its
interests in a direct rather than tangential way. We rejected a motion by three trade
associations to intervene in Standard Heating & Air Conditioning Co. v. City of
Minneapolis, 137 F.3d 567 (8th Cir. 1998), because the asserted interests were "too
speculative to be 'direct, substantial and legally protectable' interests as required by
Rule 24(a)(2)." Id. at 571 (quoting United States v. Union Elec. Co., 64 F.3d 1152,
1161 (8th Cir. 1995)). The case involved city regulations that required individuals in
the heating and cooling, refrigeration, plumbing, and gas trades to complete a four
year apprenticeship and pass a competency examination, and also governed wages in
the apprenticeship program. Companies who hired technicians in these trades
challenged the mandatory nature of the program, and three trade associations moved
to intervene as defendants. The trade associations, which represented employers who
hired apprenticed technicians, expressed concern that if participation in the
apprenticeship program were voluntary, they would be at an economic disadvantage
vis a vis employers who hired unapprenticed technicians to whom they could pay
lower wages. We held that a "sequence of events would have to occur for the interests
of the associations to be impacted by a successful challenge to the rules," and that the
associations had not submitted evidence other than their speculative beliefs that these
events were likely. Id.
Like the economic interests asserted in Standard Heating & Air Conditioning,
MIEC's interests are "remote from the subject matter of the proceeding" and any
impact is "contingent upon the occurrence of a sequence of events." Id. (quotation
omitted). Whether sewer rates will increase because of this action depends on whether
the state is required to pay for the cost of the judgment under 33 U.S.C. § 1319(e), and
on the decisions of the District's Rate Commission and Board of Trustees—decisions
that will be made after any judgment or consent decree entered in this case. As the
First Circuit held in Patch, not only did the ratepayers' concerns about increased rates
lack legal protection, those interests were "fatally contingent" because future rates
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would be affected by numerous market variables and so the lawsuit's net effect on
rates was "anybody's guess." 136 F.3d at 205–06.
A court must carefully analyze whether the proposed intervenor's asserted
interest really is bound up with the subject matter of the litigation. In Medical
Liability Mutual Insurance Co., 485 F.3d 1006, a plaintiff with a pending wrongful
death claim against a long term care facility was not permitted to intervene in an
action brought by the facility's insurer to establish the scope of insurance coverage.
The proposed intervenor's interest in eventually establishing the insurance company's
liability was "too remote and indirect to qualify as a cognizable interest under Rule
24(a)(2)." Id. at 1008. Here, MIEC claims no direct interest in whether the District
is found to have violated the Clean Water Act; its interest is limited to how this
action's financial consequences might eventually affect its members' own
pocketbooks. Such an interest is too tangential to the core issues of this enforcement
case to establish a right to intervene.
This case is more like Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir. 1982)
(per curiam), in which the court denied a motion to intervene in a suit alleging that the
United States Department of Transportation and the State of Illinois had not complied
with environmental and transportation laws when selecting the route for a new
expressway and bridge. The court found that the proposed intervenors' asserted
interests in the selected route were not sufficiently related to the subject matter of the
action because "the decision on where this project will ultimately be built is for the
executive department," while the role of the court was simply to determine whether
the agencies had complied with federal law. Id. at 186. The core of this case is
whether the District violated the Clean Water Act, and if so, what it must do to
prevent ongoing and future violations. How the District will fund those improvements
is a collateral matter for the District, not the court, to decide.
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The purpose of intervention is to "promote[] the efficient and orderly use of
judicial resources by allowing persons, who might otherwise have to bring a lawsuit
on their own to protect their interests or vindicate their rights, to join an ongoing
lawsuit instead." Mausolf, 85 F.3d at 1300. Judicial efficiency is not promoted by
allowing intervention by a party with no interest upon which it could seek judicial
relief in a separate lawsuit. Cf. S. Fla. Water Mgmt. Dist., 922 F.2d at 707 n.3
("Denial of intervention cannot impair a nonparty's ability to protect its interests if that
nonparty would have no legal protection for those interests in any event."). Not only
would allowing MIEC to intervene produce no gains in judicial efficiency, it would
most likely complicate and delay the proceedings with peripheral issues of cost and
local government financing. Although MIEC would certainly like to participate in this
enforcement action, "a federal case is a limited affair, and not everyone with an
opinion is invited to attend." Mausolf, 85 F.3d at 1301.
MIEC has other avenues to express its concerns about rate increases and
changes to the permit system that the District may propose as a result of this
enforcement action. See City of New York, 198 F.3d at 367 (denial of intervention
would not foreclose the appellants' opportunities to vindicate their interests in other
settings). Before any consent decree can be finalized in this type of case, the
government's policy is to give the public and interested persons an opportunity to
"comment on the proposed judgment prior to its entry by the court." 28 C.F.R. §
50.7(a). The Department of Justice must transmit to the district court any comments
submitted, id. § 50.7(b), and the district court can consider these comments when it
reviews a proposed consent decree for "fairness, reasonableness, and adequacy."
United States v. Metro. St. Louis Sewer Dist., 952 F.2d 1040, 1044 (8th Cir. 1992).
MIEC could also seek to participate as amicus curiae to inform the district court about
its concerns. MIEC has a representative on the District's Rate Commission which
makes recommendations about rate changes and will have the opportunity to comment
on any proposed rate increases during that public process. The type of grievances that
MIEC asserts are properly advanced in these fora, not in this federal action.
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Accordingly, we affirm the order of the district court denying the motion to
intervene in this Clean Water Act enforcement action.
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