Defenders of Wildlife v. Lisa Jackson ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2012 Decided April 23, 2013
No. 12-5122
DEFENDERS OF WILDLIFE AND SIERRA CLUB,
APPELLEES
UTILITY WATER ACT GROUP,
APPELLANT
v.
BOB PERCIASEPE, IN HIS OFFICIAL CAPACITY AS ACTING
ADMINISTRATOR, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01915)
Kristy A.N. Bulleit argued the cause for the appellant.
James N. Christman was on brief.
Thomas J. Ward was on brief for amici curiae National
Association of Home Builders et al. in support of the
appellant.
2
Robert J. Lundman, Attorney, United States Department
of Justice, argued the cause for the federal appellee. Madeline
Fleisher and John L. Smeltzer, Attorneys, were on brief.
Jennifer Suzanne Peterson argued the cause for appellees
Defenders of Wildlife et al. Abigail Dillen was on brief.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Defenders
of Wildlife and Sierra Club (collectively, Defenders) sued the
United States Environmental Protection Agency (EPA) based
on EPA’s alleged failure to promptly promulgate revisions to
certain effluent limitations and effluent limitations guidelines
under the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq.
When Defenders filed its complaint, it simultaneously filed a
proposed consent decree—signed by Defenders and EPA—
establishing a schedule for EPA to initiate notice-and-
comment rulemaking and make a formal decision whether to
promulgate a new rule revising certain effluent limitations and
effluent limitations guidelines. Utility Water Act Group
(UWAG), an association of energy companies and three
national trade associations of energy companies, moved to
intervene but the district court denied UWAG’s motion and
entered the consent decree. UWAG appeals the denial of
intervention and also asserts that—whatever our decision on
the denial of intervention—we should vacate the district court
order entering the consent decree because the district court
lacked subject matter jurisdiction. We disagree. We affirm the
denial of intervention—because UWAG lacks Article III
standing—and, as there is no appellant with standing, we
dismiss the remainder of the appeal.
3
I.
Section 301(a) of the CWA prohibits “the discharge of
any pollutant by any person” into the waters of the United
States except in compliance with the CWA. 33 U.S.C.
§ 1311(a). The CWA requires a point source1 of pollution to
satisfy effluent limitations.2 Id. § 1311(b). “For the purpose of
adopting or revising effluent limitations,” the CWA requires
EPA to develop effluent limitations guidelines (ELGs). Id.
§ 1314(b); see also Our Children’s Earth Found. v. EPA, 527
F.3d 842, 848 (9th Cir. 2008), cert. denied 555 U.S. 1045(2008) (“The specific effluent limitations . . . are determined
by the terms of more general ‘effluent limitation guidelines,’
which are separately promulgated by the EPA.”). EPA
implements the requirements for individual point sources
through the National Pollution Discharge Elimination System
permitting scheme. See 33 U.S.C. §§ 1311(a), 1342.
The CWA establishes review and revision requirements
for effluent limitations and ELGs. Section 301(d) provides
that “[a]ny effluent limitation . . . shall be reviewed at least
1
“The term ‘point source’ means any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged. This
term does not include agricultural stormwater discharges and return
flows from irrigated agriculture.” 33 U.S.C. § 1362(14).
2
“The term ‘effluent limitation’ means any restriction
established by a State or the [EPA] Administrator on quantities,
rates, and concentrations of chemical, physical, biological, and
other constituents which are discharged from point sources into
navigable waters, the waters of the contiguous zone, or the ocean,
including schedules of compliance.” 33 U.S.C. § 1362(11).
4
every five years and, if appropriate, revised.” Id. § 1311(d).
Section 304(b) provides: “ . . . the Administrator shall . . .
publish within one year of October 18, 1972, regulations,
providing guidelines for effluent limitations, and, at least
annually thereafter, revise, if appropriate, such regulations.”
Id. § 1314(b). Section 304(m) requires EPA to publish a plan
every two years that, inter alia, “establish[es] a schedule for
the annual review and revision of promulgated effluent
guidelines.” Id. § 1314(m)(1)(A).
As EPA explained in its most recent section 304(m) plan:
For over three decades, EPA has implemented
sections 301 and 304 through the promulgation
of effluent limitations guidelines, resulting in
regulations for 57 industrial categories.
Consequently, as part of its annual review of
effluent limitations guidelines under section
304(b), EPA is also reviewing the effluent
limitations they contain, thereby fulfilling its
obligations under sections 301(d) and 304(b)
simultaneously.
Notice of Final 2010 Effluent Guidelines Program Plan, 76
Fed. Reg. 66,286, 66,289 (Oct. 26, 2011). One category of
effluent limitations and ELGs that applies to UWAG’s
members3 is the “Steam Electric Power Generating Point
3
The Steam Electric effluent limitations and ELGs “are
incorporated into National Pollutant Discharge Elimination System
(NPDES) discharge permits issued by EPA and States” and “apply
to steam electric power plants using nuclear- and fossil-fueled
steam electric power plants nationwide.” Environmental Protection
Agency, Spring 2010 Semiannual Regulatory Agenda 148 (2010),
available at http://www.epa.gov/lawsregs/documents/regagenda
book-spring10.pdf
5
Source Category” (Steam Electric). EPA first promulgated
effluent limitations and ELGs for the Steam Electric Category
in 1974, see Steam Electric Power Generating Point Source
Category, 39 Fed. Reg. 36,186, 36,186 (Oct. 8, 1974), and last
revised them in 1982, Steam Electric Power Generating Point
Source Category; Effluent Limitations Guidelines,
Pretreatment Standards and New Source Performance
Standards, 47 Fed. Reg. 52,290, 52,292 (Nov. 19, 1982).
On September 14, 2009, Defenders wrote to EPA,
declaring that it intended to sue EPA for failing to “conduct
and complete a review” of Steam Electric effluent limitations
and ELGs under sections 301(d) and 304(b). Joint Appendix
(JA) 22. On September 15, EPA issued a press release stating
that it “plan[ned] to revise the existing standards for water
discharges from coal-fired power plants.” Press Release,
Environmental Protection Agency, EPA Expects to Revise
Rules for Wastewater Discharges from Power Plants (Sept.
15, 2009), available at http://yosemite.epa.gov/opa/admpress
.nsf/d0cf6618525a9efb85257359003fb69d/ce5c2d398240af02
852576320049a550!OpenDocument; see also Notice of
Availability of Preliminary 2010 Effluent Guidelines Program
Plan, 74 Fed. Reg. 68,599, 68,608 (Dec. 28, 2009) (“EPA has
decided to pursue an effluent guidelines rulemaking for the
Steam Electric Power Generating (Part 423) category.”). In its
Spring 2010 Regulatory Agenda, EPA projected its issuing a
notice of proposed rulemaking for the Steam Electric category
by July 2012 and final action by March 2014. See
Environmental Protection Agency, Spring 2010 Semiannual
Regulatory Agenda 148 (2010), available at http://
www.epa.gov/lawsregs/documents/regagendabook-spring10.p
df. EPA intended to engage in the rulemaking because “[i]n a
study completed in 2009, EPA found that the current
regulations, which were last updated in 1982, do not
adequately address the pollutants being discharged and have
6
not kept pace with changes that have occurred in the electric
power industry over the last three decades.” Id.
On November 8, 2010, apparently upon reaching a
settlement with EPA, Defenders filed a complaint against
EPA in district court. Simultaneously, EPA and Defenders
filed a consent decree and joint motion to enter the consent
decree. The complaint alleges that the action “arises under the
citizen suit provision of the Clean Water Act,” Compl. ¶ 5,4
and contends that EPA failed to fulfill its nondiscretionary
duty to review and, if appropriate, revise the Steam Electric
effluent limitations and ELGs. The consent decree provides,
inter alia, that (1) by July 23, 2012, EPA “shall sign . . . a
notice of proposed rulemaking pertaining to revisions to the
Steam Electric Effluent Guidelines under the Clean Water
Act,” Consent Decree ¶ 3; and (2) by January 31, 2014, EPA
“shall sign . . . a decision taking final action following notice
and comment rulemaking pertaining to revisions to the Steam
Electric Effluent Guidelines under the Clean Water Act,” id.
¶ 4. The consent decree allows the parties to modify the
timeline by mutual agreement or, failing agreement, through a
dispute resolution procedure in district court. It further
provides that it cannot be read to “limit or modify the
discretion accorded EPA by the Clean Water Act or by
general principles of administrative law.” Id. ¶ 15.
On November 16, 2010, only eight days after the
complaint was filed, UWAG moved to intervene as a party
4
33 U.S.C. § 1365(a)(2) provides that: “Except as provided in
subsection (b) of this section and section 1319(g)(6) of this title,
any citizen may commence a civil action on his own behalf . . .
against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which
is not discretionary with the Administrator.”
7
defendant—both as of right and permissively—pursuant to
Federal Rule of Civil Procedure 24(a) and (b). It sought to
dismiss the complaint for lack of subject matter jurisdiction
and failure to state a claim; alternatively, it sought to weigh in
on the rulemaking schedule. On March 18, 2012, the district
court denied the motion. See Defenders of Wildlife v. Jackson,
284 F.R.D. 1 (D.D.C. 2012). The court held that it had
jurisdiction under the CWA’s citizen-suit provision and that
UWAG had no right to intervene under Rule 24(a) because,
inter alia, UWAG lacked Article III standing. See id. at 4-8. It
also rejected UWAG’s alternative motion to permissively
intervene under Rule 24(b). Id. at 8. On March 19, 2012, the
district court signed and entered the consent decree. Since the
decree was entered, the district court has entered three
stipulated extensions to the consent decree’s deadlines.5
On April 17, 2012, UWAG timely appealed the district
court order denying its motion to intervene. UWAG also
purported to appeal the district court order entering the
consent decree and the first of the stipulated extensions.
II.
In addition to challenging the district court order denying
its motion for intervention, UWAG maintains that we should
5
The first stipulated extension, filed April 2, 2012, changed
the deadline for EPA to issue a notice of proposed rulemaking from
July 23, 2012 to November 20, 2012 and the deadline for EPA to
take final action from January 31, 2014 to April 28, 2014. The
second stipulated extension, filed September 20, 2012, extended the
dates to December 14, 2012 and May 22, 2014, respectively. The
third stipulated extension, filed December 10, 2012, extended the
December 14, 2012 date to April 19, 2013 and left the May 22,
2014 date unchanged.
8
first decide whether the district court had jurisdiction. We
disagree with both arguments.
A.
We first address UWAG’s asserted right to intervene. We
review the denial of a motion to intervene de novo for issues
of law, for clear error as to findings of fact and for abuse of
discretion on issues that “involve a measure of judicial
discretion.” Fund for Animals, Inc. v. Norton, 322 F.3d 728,
732 (D.C. Cir. 2003). Rule 24(a)(2) provides: “[o]n timely
motion, the court must permit anyone to intervene who,” inter
alia:
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.
Fed. R. Civ. P. 24(a). We have, not surprisingly, divided Rule
24(a)(2) into four elements:
1) the application to intervene must be timely,
2) the party must have an interest relating to
the property or transaction which is the subject
of the action, 3) the party must be so situated
that the disposition of the action may, as a
practical matter, impair or impede the party’s
ability to protect that interest, and 4) the
party’s interest must not be adequately
represented by existing parties to the action.
Bldg. & Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d
1275, 1282 (D.C. Cir. 1994).
9
We also require a party seeking to intervene as of right to
demonstrate Article III standing. In re Endangered Species
Act Section 4 Deadline Litig., 704 F.3d 972, 976 (D.C. Cir.
2013); see also Jones v. Prince George’s Cnty., Md., 348 F.3d
1014, 1018-19 (D.C. Cir. 2003) (Article III standing satisfies
second element of Rule 24(a)(2)). We review standing de
novo. Section 4 Deadline Litig., 704 F.3d at 976.
UWAG asserts that it has representational standing. “An
association only has standing to bring suit on behalf of its
members when [1] its members would otherwise have
standing to sue in their own right, [2] the interests it seeks to
protect are germane to the organization’s purpose, and [3]
neither the claim asserted nor the relief requested requires the
participation of individual members[.]” Fund Democracy,
LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002). The parties
dispute only the first of these elements—whether UWAG’s
members would have standing to sue in their own right.
To establish that a UWAG member has Article III
standing in its own right, UWAG must demonstrate that the
member has incurred “ ‘[1] an actual or imminent injury in
fact, [2] fairly traceable to the challenged agency action, [3]
that will likely be redressed by a favorable decision.’ ” N.Y.
Reg’l Interconnect v. FERC, 634 F.3d 581, 586 (D.C. Cir.
2011) (quoting Exxon Mobil Corp. v. FERC, 571 F.3d 1208,
1219 (D.C. Cir. 2009)). “An injury in fact is ‘an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.’ ” Id. (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)). An injury is particularized if it
affects the party asserting standing “ ‘in a personal and
individual way.’ ” Id. (quoting Lujan, 504 U.S. 560 n.1).
UWAG asserts two bases for its members’ standing. We
reject both.
10
1.
UWAG first argues that its members have standing
because the consent decree imposes too strict a timeline for
EPA to decide whether and when to engage in rulemaking.
According to UWAG, the timeline provides too little time for
notice and comment such that its members will not have an
adequate opportunity to participate in the rulemaking, making
it more likely that EPA will promulgate a rule economically
harmful to its members.
At the outset, we note that this case is not a “procedural
injury” case. “Where plaintiffs allege injury resulting from
violation of a procedural right afforded to them by statute and
designed to protect their threatened concrete interest, the
courts relax—while not wholly eliminating—the issues of
imminence and redressability, but not the issues of injury in
fact or causation.” Ctr. for Law & Educ. v. Dep’t of Educ.,
396 F.3d 1152, 1157 (D.C. Cir. 2005); but see Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation
of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is
insufficient to create Article III standing.”). UWAG has not
identified a procedural requirement that either EPA has
violated by agreeing to the consent decree or that is designed
to protect UWAG’s members’ concrete interests.
UWAG first argues that the consent decree violates its
members’ asserted right to “be[ ] subject to such a rulemaking
only to the extent the statute commands it or authorizes EPA,
in its informed discretion, to undertake it.” See Appellant Br.
27 (emphasis in original). We recently rejected a similar
“discretion” argument in Section 4 Deadline Litigation. In
that case, the Safari Club, an association whose members hunt
three species of animals, sought to intervene in an action
brought by environmental plaintiffs against the Secretary of
11
the United States Department of the Interior and the U.S. Fish
and Wildlife Service seeking to compel the government to
comply with deadlines set forth in the Endangered Species
Act. 704 F.3d at 974-75. The plaintiffs and the government
had reached settlement agreements in which the government
agreed, inter alia, to decide by a particular date whether to list
the three species as “endangered” or “threatened” or find both
listings “not warranted.” Id. at 975. The Safari Club argued
that its procedural rights were violated because “the
settlement agreements establish an illegal procedure—the
elimination of the Service’s statutory authority to find that a
proposal to list a species is warranted but precluded by higher
priorities.” Id. at 976 (quotation marks omitted). We rejected
its argument: “The Safari Club has neither identified a
statutory procedure that the settlement agreements require the
Service to violate, nor shown that the [statutory provision at
issue] is designed to protect its interest in delaying formal
listing.” Id. at 977. The same analysis applies here—whether
UWAG is correct about EPA’s discretion to determine when
to conduct a rulemaking, UWAG has failed to identify a
statutory procedure that the consent decree requires EPA to
violate.
Nor is there a “procedural injury” flowing from the
consent decree’s notice and comment schedule—it allows
thirteen months between the notice of proposed rulemaking
and final action. UWAG cites no authority holding a thirteen-
month notice-and-comment period is too short; UWAG
simply asserts that it is too short compared to EPA’s past
rulemakings. That one rulemaking moves faster than another,
however, does not mean that it results in procedural injury to
UWAG members.6 Having determined that UWAG members
6
UWAG cites a memorandum from the Office of Management
and Budget (OMB) encouraging federal agencies with rulemaking
12
cannot establish standing based on a procedural rights theory,
we turn to their asserted injury resulting from the rulemaking
process.
Significantly, the consent decree does not require EPA to
promulgate a new, stricter rule. Instead, it merely requires that
EPA conduct a rulemaking and then decide whether to
promulgate a new rule—the content of which is not in any
way dictated by the consent decree—using a specific timeline.
But Article III standing requires more than the possibility of
potentially adverse regulation. Nat’l Ass’n of Home Builders
v. EPA, 667 F.3d 6, 13 (D.C. Cir. 2011) (association lacked
standing to challenge agency determination because, until
determination applied to particular property or the agencies
used it in an enforcement action, “any challenge to it is [ ]
premature. In the meanwhile, [its] members face only the
possibility of regulation, as they did before the
[determination]” (emphasis in original)); see also Alternative
authority, “where appropriate and feasible, and to the extent
permitted by law,” to consider, inter alia, “[e]arly consultation
with, advance notice to, and close engagement with stakeholders.”
Memorandum from Cass R. Sunstein, Administrator, Office of
Information and Regulatory Affairs, Cumulative Effect of
Regulations 1–2 (Mar. 20, 2012), available at http://www.
whitehouse.gov/sites/default/files/omb/assets/inforeg/cumulative-
effects-guidance.pdf. Whether EPA is in compliance with the
memorandum, the memorandum simply provides guidance
regarding Executive Order No. 13,563, 76 Fed. Reg. 3,821, 3,823
(Jan. 18, 2011), which provides: “This order is not intended to, and
does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United
States, its departments, [or its] agencies.” Neither the OMB
memorandum nor the Executive Order provides support for
UWAG’s procedural injury argument.
13
Research & Dev. Found. v. Veneman, 262 F.3d 406, 411
(D.C. Cir. 2001) (per curiam) (“But NABR’s rights were not
impaired by the initiation of a rulemaking. . . . As the district
court noted during the hearing on the motion to intervene,
NABR will not be precluded from participating in the
rulemaking and, if USDA decides to issue a final rule, NABR
is not precluded from challenging that rule. . . . [T]he
stipulated dismissal does not bind the agency in its
rulemaking.”); cf. Platte River Whooping Crane Critical
Habitat Maint. Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir.
1992) (“Allegations of injury based on predictions regarding
future legal proceedings are . . . too speculative” to support
showing of “current or even impending injury[.]”). Nor is
Article III standing established by an inability to comment
effectively or fully. Int’l Bhd. of Teamsters v. Transp. Sec.
Admin., 429 F.3d 1130, 1135 (D.C. Cir. 2005) (“[T]he ‘mere
inability to comment effectively or fully, in and of itself, does
not establish an actual injury.’ ” (quoting United States v.
AVX Corp., 962 F.2d 108, 119 (1st Cir. 1992))). That the
consent decree prescribes a date by which regulation could
occur does not establish Article III standing.7
UWAG’s reliance on our holding in Natural Resources
Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977), a
case factually similar to this case, is unavailing. In Costle,
environmental plaintiffs submitted to the district court a
7
UWAG’s assertion notwithstanding, the standing question
becomes no closer due to EPA’s statements—made before entering
into the consent decree—that it intended to update the Steam
Electric effluent limitations and ELGs. UWAG has the burden to
establish that the consent decree—not EPA’s throat-clearing—will
cause the injury of which it complains. The consent decree does not
do so. In fact, it explicitly preserves EPA’s discretion to promulgate
a rule or decline to do so.
14
proposed settlement agreement that required EPA to initiate
rulemaking for certain named pollutants pursuant to an
agreed-upon schedule. Id. at 906. The settlement agreement
permitted EPA to decline to issue any new rule but only if it
met certain requirements set forth in the agreement and
“promptly submit[ted] a statement under oath to the parties
explaining and justifying the exclusion,” in which event “the
parties [could] presumably invoke the continuing jurisdiction
of the District Court to review whether the exclusion squares
with the grounds of the settlement agreement.” Id. at 909. We
held that intervenors subject to regulation under the new rules
satisfied the third element of Rule 24(a)(2)—viz., “the denial
of intervention works a practical impairment of [their]
interests.” Id. at 908-11.
But Costle does not dictate the outcome here. First,
Costle does not analyze the standing issue and therefore has
no precedential effect on the jurisdictional question before us.
See Hagans v. Lavine, 415 U.S. 528, 535, n.5 (1974)
(“[W]hen questions of jurisdiction have been passed on in
prior decisions sub silentio, this Court has never considered
itself bound when a subsequent case finally brings the
jurisdictional issue before us.”).8 Furthermore, unlike here,
8
There is no argument that Costle indirectly addressed
standing by analyzing Rule 24(a)(2). Had Costle analyzed the
second element of Rule 24(a)(2)—the potential intervenor must
have “an interest relating to the property or transaction which is the
subject of the action,” Costle might dictate our result. See Jones,
348 F.3d at 1018-19 (if intervenor establishes Article III standing, it
satisfies the second element of Rule 24(a)(2)) Costle, however,
does not analyze this element. See Costle, 561 F.2d at 909 n.27
(noting only that district court found intervenors satisfied second
element). Instead, Costle analyzed the third element—whether the
15
the proposed settlement agreement in Costle restricted EPA’s
discretion—if EPA decided not to promulgate a rule, it had to
comply with the requirements of the consent decree, which
requirements were enforced by the district court. Compare
Veneman, 262 F.3d at 411 (“Significantly, the stipulated
dismissal does no more than what the agency could have done
by granting Alternative Research’s pending agency petition
for rulemaking, and the stipulated dismissal does not bind the
agency in its rulemaking.” (emphasis added)).
In sum, UWAG fails to establish Article III standing
based on its members’ alleged injury resulting from the
rulemaking process.
2.
UWAG also asserts it has Article III standing because the
consent decree is likely to be costly to its members. The CWA
requires UWAG members to respond to EPA’s information
requests. See 33 U.S.C. § 1318(a)(A). UWAG argues that the
consent decree’s accelerated schedule forces EPA to request
information from UWAG members on tight deadlines, which
is expensive and time consuming. See Ass’n of Private Sector
Colleges & Univs. v. Duncan, 681 F.3d 427, 457–58 (D.C.
Cir. 2012) (party not directly regulated by agency rule had
standing based on increased compliance costs resulting from
regulation of a different party). For example, a UWAG
member submitted an affidavit declaring that it had incurred
over one hundred thousand dollars in costs because it had to
respond to an EPA questionnaire about the Steam Electric
effluent limitations and ELGs on a short timeframe.
denial of intervention would work a “practical impairment of [the
putative intervenors’] interests.”
16
But the consent decree did not cause and is not currently
causing the alleged informational cost. Rather, EPA submitted
the questionnaire at issue months before Defenders and EPA
signed the consent decree and years before the district court
entered it. See Questionnaire for Steam Electric Power
Generating Effluent Guidelines (New), 75 Fed. Reg. 10,791
(Mar. 9, 2010). Indeed, Defenders challenge UWAG’s
standing argument on this very basis. See Br. for Pl.-
Appellees 45-46 (“EPA submitted the relevant data requests
before it reached a settlement with Plaintiffs.”). UWAG,
however, has not attempted to establish that its members
continue to incur the costs of additional or more stringent
information requests as a result of the consent decree. See Los
Angeles v. Lyons, 461 U.S. 95, 105 (1983) (“[Past injury,]
while presumably affording [plaintiff] standing to claim
damages . . . does nothing to establish a real and immediate
threat that he would again be [injured in the future.]”); Worth
v. Jackson, 451 F.3d 854, 858 (D.C. Cir. 2006) (“While
HUD’s policies did allegedly injure Worth in the past, he
seeks no relief for such injuries. . . . Instead, the basis for both
his claims is that he intends to apply for new positions and
promotions . . . . For standing purposes, then, we limit our
inquiry to determining whether that prospective injury
qualifies as an injury in fact.” (quotation marks omitted)).
While we treat UWAG’s “factual allegations as true and
must grant [the intervenor] the benefit of all inferences that
can be derived from the facts alleged,” NB ex rel. Peacock v.
District of Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012)
(quotation marks and ellipses omitted), UWAG provides no
more than speculation to support its argument that the consent
decree—as opposed to EPA’s actions aliunde the consent
decree—caused or will cause increased information gathering
costs. Accordingly, UWAG cannot establish its members’
standing based on increased costs.
17
B.
UWAG also contends that the district court erred in
rejecting UWAG’s alternative argument that it is entitled to
intervene permissively under Rule 24(b). Rule 24(b) allows
for permissive intervention as follows:
(1) In General. On timely motion, the court
may permit anyone to intervene who . . .
(B) has a claim or defense that shares
with the main action a common
question of law or fact. . . .
(3) Delay or Prejudice. In exercising its
discretion, the court must consider whether the
intervention will unduly delay or prejudice the
adjudication of the original parties' rights.
Fed. R. Civ. P. 24(b). “It remains . . . an open question in this
circuit whether Article III standing is required for permissive
intervention.” Section 4 Deadline Litig., 704 F.3d at 980. The
district court concluded that UWAG’s claim “share[d] with
the main action a common question of law or fact” but that
the UWAG’s intervention would “unduly delay . . . the
adjudication of the original parties’ rights” because UWAG
challenged the court’s subject matter jurisdiction. Defenders
of Wildlife, 284 F.R.D. at 8 (quotation marks omitted).
UWAG asserts that the district court abused its discretion in
finding that its intervention would cause delay.
“The denial of a Rule 24(b) motion is not usually
appealable in itself, although the court may exercise its
pendent appellate jurisdiction to reach questions that are
inextricably intertwined with ones of which we have direct
jurisdiction.” Section 4 Deadline Litig., 704 F.3d at 979. In at
least two cases, however, we have declined to review the
18
denial of a Rule 24(b) motion once we determined the
potential intervenor lacked standing. Id. at 980; In re Vitamins
Antitrust Class Actions, 215 F.3d 26, 32 (D.C. Cir. 2000) (“In
view of the unresolved standing issue, however, we think it
inappropriate to exercise our pendent jurisdiction.”). Here,
too, given UWAG’s lack of Article III standing, we decline to
reach the Rule 24(b) issue.
C.
Even if it cannot intervene, UWAG asserts that we
should nonetheless consider its arguments regarding the
district court’s subject matter jurisdiction. We disagree.
“The power of federal courts to hear and decide cases is
defined by Article III of the Constitution and by the federal
statutes enacted thereunder.” Karcher v. May, 484 U.S. 72, 77
(1987). We have jurisdiction over, inter alia, “appeals from
all final decisions of the district courts.” 28 U.S.C. § 1291.
“The rule that only parties to a lawsuit, or those that properly
become parties, [e.g., through intervention,] may appeal an
adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S.
301, 304 (1988) (per curiam); see also id. (“[W]e hold that
because petitioners were not parties to the underlying lawsuit,
and because they failed to intervene for purposes of appeal,
they may not appeal from the consent decree approving that
lawsuit’s settlement . . . .”); cf. Fed. R. App. P. 3(c)(1)(A)
(“The notice of appeal must: specify the party or parties
taking the appeal . . . .”).
There are a few exceptions to this general rule, e.g., if the
district court order “effectively [binds] a non-party.” United
States v. LTV Corp., 746 F.2d 51, 53 (D.C. Cir. 1984). The
exceptions “are limited,” however, and “the fact that a
decision against a defendant may practically [affect] a third
party is not ordinarily enough for appellant status absent
19
intervention or joinder in the trial court.” Nat’l Ass’n of Chain
Drug Stores v. New England Carpenters Health Benefits
Fund, 582 F.3d 30, 41 (1st Cir. 2009); see also Marino, 484
U.S. at 304 (“[T]he better practice is for such a nonparty to
seek intervention for purposes of appeal . . . .”).
Because a party unsuccessfully appealing a denial of
intervention is not a “party,” it may not obtain review of any
district court holding other than the denial of intervention. See
Section 4 Deadline Litig., 704 F.3d at 980 (affirming denial of
intervention and thus not “reaching the Safari Club’s
objections to the settlement agreements”); Veneman, 262 F.3d
at 406 (“[B]ecause the district court correctly denied
intervention, NABR is not a party to the action and lacks
standing to appeal from either the stipulation of dismissal or
the order denying its Rule 60(b) motion, which challenged the
stipulated dismissal.”); United States v. British Am. Tobacco
Australia Servs., Ltd., 437 F.3d 1235, 1240 (D.C. Cir. 2006)
(“We have stated many times that failed intervenors may not
appeal District Court actions to which they are not a party.”).
UWAG argues for an exception to this rule, contending
that the general prohibition on non-party appeals must yield to
the doctrine that “every federal appellate court has a special
obligation to ‘satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review.’ ”
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986). But we have this obligation only to the extent we have
authority to act in the first place, that is, if we have
jurisdiction. Salazar ex rel. Salazar v. District of Columbia,
671 F.3d 1258, 1261 (D.C. Cir. 2012) (“Because we are a
court of limited jurisdiction, our inquiry must always begin by
asking whether we have jurisdiction to decide a particular
appeal.”). If we lack jurisdiction, we cannot vacate the district
court’s order for lack of jurisdiction because we lack the
power to do so. See Bender, 475 U.S. at 546 (“On every writ
20
of error or appeal, the first and fundamental question is that of
jurisdiction, first, of this court, and then of the court from
which the record comes.” (emphasis added)).
Applying these principles in a fairly recent case, we
addressed a prospective intervenor’s jurisdictional challenge
only after we concluded that it had the right to intervene. See
Acree v. Republic of Iraq, 370 F.3d 41, 50-51 (D.C. Cir.
2004), cert. denied, 544 U.S. 1010 (2005), abrogated in other
part by Republic of Iraq v. Beaty, 556 U.S. 848 (2009). In
Acree, the United States sought to intervene in district court
“for the sole purpose of contesting the subject matter
jurisdiction of the District Court;” however, the district court
denied intervention. Id. at 46-47. In so doing, it “considered
its own subject matter jurisdiction and concluded that it
retained jurisdiction.” Id. at 47. On appeal, we declined to
reach any of the “merits issues” (including the issue of subject
matter jurisdiction) until after considering the propriety of the
district court’s denial of intervention. Id. at 49. We declared:
“If the United States were not properly a party to this case,
then it would have no right to appeal the District Court’s
judgment, and we would be required to dismiss this case
without passing upon its merits for lack of a proper
appellant.” Id. (citation omitted). We ultimately concluded
that intervention was proper and thus “reverse[d] the decision
of the District Court denying the United States’ motion to
intervene and turn[ed] to the merits of the Government’s
jurisdictional challenge.” Id. at 51. While we have jurisdiction
to decide UWAG’s appeal of the district court order denying
intervention, because we conclude that the district court
properly denied that motion, UWAG, a non-party, cannot
appeal any other issue.
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For the foregoing reasons, we affirm the district court’s
denial of UWAG’s motion to intervene and dismiss the appeal
in all other respects.
So ordered.