EPA Response To Motions To Intervene 10/28/2013 ND Cal

EPAS RESPONSE TO MOTIONS TO INTERVENE
CASE NO.: 4:13-cv-3953-SI

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ROBERT G. DREHER
Acting Assistant Attorney General
Environment and Natural Resources Division
MARTHA C. MANN
U.S. Department of J ustice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
Tel: (202) 514-2664
Fax: (202) 514-8865
Email: martha.mann@usdoj.gov

Attorneys for Defendant Gina McCarthy,
Administrator, United States
Environmental Protection Agency

[Additional counsel listed on signature page]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

SIERRA CLUB, et al.,
Plaintiffs,

v.

GINA McCARTHY, Administrator,
United States Environmental Protection
Agency
.

Defendant.

Case No.: 3:13-cv-3953-SI
EPAS RESPONSE TO MOTIONS TO
INTERVENE

Date: TBA
Time: TBA
Courtroom: 10

Case3:13-cv-03953-SI Document54 Filed10/28/13 Page1 of 20

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TABLE OF CONTENTS

BACKGROUND .......................................................................................................................... 1
A. STATUTORY BACKGROUND.......................................................................... 1
B. FACTUAL BACKGROUND ............................................................................... 3
ANALYSIS ................................................................................................................................... 6
I. PROPOSED PLAINTIFF-INTERVENORS HAVE NOT SATISFIED
THE RULE 24(a) STANDARD FOR INTERVENTION ................................................ 6

A. Proposed Intervenors Asserted Interests Do Not Constitute a Significant
Protectable Interest in this Case, Which Involves Only the Deadline for
EPA to Designate Areas under the Revised SO
2
NAAQS. ................................ 6

B. Denying Intervention Would Not Impair or Impede Proposed Intervenors
Interest................................................................................................................. 12

C. Plaintiffs Interest in Obtaining a Date Certain for EPA to Make
Designations is Sufficient to Represent Proposed Intervenors Interest in
Requiring EPA to Promulgate Designations by a Date Certain ......................... 13

II. EPA DOES NOT TAKE A POSITION ON WHETHER PERMISSIVE
INTERVENTION SHOULD BE GRANTED UNDER RULE 24(b) ............................ 13

CONCLUSION ........................................................................................................................... 14


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TABLE OF AUTHORITIES
CASES
American Lung Ass'n v. Reilly, 141 F.R.D. 19 (E.D.N.Y. 1992), aff'd, 962 F.2d 258
(2d Cir. 1992) ................................................................................................................ 10
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003) ......................................................... 6
Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939 (D.C. Cir. 2005) .............. 10
City of Emeryville v. Robinson, 621 F.3d 1251 (9th Cir. 2010) ........................................ 7
GenOn Rema, LLC v. EPA, 722 F.3d 513 (3d Cir. 2013).................................................. 9
Local No. 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501 (1986) .................... 11
Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012) ................................ 8
Nat'l Ass'n of Clean Water Agencies v. EPA, No. 11-1131, 2013 WL 4417438, at *45
(D.C. Cir. Aug. 20, 2013) ............................................................................................. 10
Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012) .......... 4
Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) ......................... 6
Perry v. Schwarzenegger, 630 F.3d 898 (9th Cir. 2011) .................................................. 14
Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1993)............................................................ 6
Spangler v. Bd. of Educ., 552 F.2d 1326 (9th Cir. 1977) ................................................. 14
Swift & Co. v. United States, 276 U.S. 311 (1928) .......................................................... 11
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) ................................ 13
United States v. Union Elec., 74 F.3d 1152 (9th Cir. 1995) ............................................... 7
Waller v. Fin. Corp. of Am., 828 F.2d 579 (9th Cir. 1987) .............................................. 11
Wilderness Soc'y v. United States Forest Serv., 630 F.3d 1173 (9th Cir. 2011) (en banc) 6
STATUTES
42 U.S.C. 7401-7671q ................................................................................................... 1
42 U.S.C. 7401(a)(3)-(4) .................................................................................................. 1
42 U.S.C. 7407(d)(1) ....................................................................................................... 1
42 U.S.C. 7407(d)(1)(A) .................................................................................................. 2


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42 U.S.C. 7407(d)(1)(A)(i)-(iii) ....................................................................................... 2
42 U.S.C. 7407(d)(1)(B) .................................................................................................. 9
42 U.S.C. 7407 (d)(1)(B)(i) ............................................................................................. 2
42 U.S.C. 7407 (d)(1)(B)(ii) .................................................................................. 2, 3, 11
42 U.S.C. 7407(d)(3) ....................................................................................................... 9
42 U.S.C. 7408-7409 ....................................................................................................... 1
42 U.S.C. 7410(a)(1)-(2) .............................................................................................. 3, 7
42 U.S.C. 7413(g) .......................................................................................................... 11
42 U.S.C. 7426 ................................................................................................................. 9
42 U.S.C. 7471-7475 ................................................................................................. 3, 7
42 U.S.C. 7502 ............................................................................................................... 8
42 U.S.C. 7502(a)(2) ........................................................................................................ 3
42 U.S.C. 7503 ........................................................................................................... 3, 8
42 U.S.C. 7514-7514a ...................................................................................................... 8
42 U.S.C. 7514a(a)........................................................................................................... 3
42 U.S.C. 7604(d) .......................................................................................................... 14
RULES
Fed. R. Civ. P. 24(a)(2) ................................................................................................. 6, 12
Fed. R. Civ. P. 24(b)(1)..................................................................................................... 13
REGULATIONS
40 C.F.R. Pt. 50 ................................................................................................................... 1
40 C.F.R. 50.17(a)-(b)...................................................................................................... 4
FEDERAL REGISTER
75 Fed. Reg. 35,520 (J une 22, 2010) .................................................................................. 3
78 Fed. Reg. 47,191 (Aug. 5, 2013).................................................................................... 4


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Proposed Plaintiff-Intervenors (Proposed Intervenors), several state
governmental entities, seek to intervene in this matter, of right and permissively, under
Federal Rule of Civil Procedure 24. Motions to Intervene (ECF Nos. 16, 23).
1
As
explained below, the Proposed Intervenors do not satisfy the requirements for
intervention as of right under Rule 24(a). Defendant Gina McCarthy, in her official
capacity as Administrator of the Environmental Protection Agency (EPA or the
Agency) takes no position on whether the Proposed Intervenors should be permitted to
intervene under Rule 24(b).
BACKGROUND
A. STATUTORY BACKGROUND
The Clean Air Act (CAA), 42 U.S.C. 7401-7671q, establishes a cooperative
joint state and federal program to control the Nation's air pollution. 42 U.S.C.
7401(a)(3)-(4). This scheme reflects a continuing partnership between EPA and the
states in order to protect the Nations public health, and involves several different steps
and tasks that both states and EPA are directed to take, often in response to each others
actions. CAA Title I charges EPA with identifying certain air pollutants that may
reasonably be anticipated to endanger public health and welfare, and with formulating
National Ambient Air Quality Standards (NAAQS) that specify the maximum
permissible concentrations of those pollutants in the ambient air. Id. 7408-7409. EPA
has promulgated NAAQS for several pollutants, including sulfur dioxide (SO
2
).
40 C.F.R. Pt. 50.
After EPA promulgates new or revised NAAQS, CAA Section 107(d)(1) directs
the Agency to designate areas nationwide as attaining or not attaining the NAAQS
through an administrative process with states. 42 U.S.C. 7407(d)(1). First, Section

1
The State of North Carolina filed a motion to intervene on September 24, 2013. ECF
No. 16. The State of North Dakota, the State of Arizona, the Commonwealth of
Kentucky Energy and Environment Cabinet, the State of Louisiana Department of
Environmental Quality, the State of Nevada, and the State of Texas joined in a separate
motion to intervene filed on September 26, 2013. ECF No. 23.

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107(d)(1) requires each state, within one year of a new or revised NAAQS, to submit to
EPA a list identifying the states initial recommended designations for all areas within the
state. Id. 7407(d)(1)(A). The CAA establishes three designations that states may
recommend:
nonattainment: areas that do not meet the NAAQS, and areas that contribute to
a violation of the NAAQS in a nearby area;

attainment: areas that meet the NAAQS; and

unclassifiable: areas in which available information is insufficient to determine
whether the NAAQS is met.

Id. 7407(d)(1)(A)(i)-(iii).
CAA Section 107(d)(1)(B) then directs EPA to promulgate, within two years of
setting new or revised NAAQS, designations in response to the states recommended
designations. Id. 7407(d)(1)(B)(i). This period may be extended for up to one year in
the event EPA lacks sufficient information to promulgate the designations. Id. EPA is
authorized to make any modifications the Administrator deems necessary to a state's
recommended designations. Id. 7407(d)(1)(B)(ii).
When EPA modifies a states recommendation, EPA must provide the state with
notice 120 days before promulgating the final designations and an opportunity to
demonstrate why any proposed modification is inappropriate. Id. If a state fails to
submit a list of recommended designations, in whole or in part, EPA must promulgate
designations that EPA deems appropriate for any area (or portion thereof) not designated
by the State. Id. EPA's promulgation of designations for each area, depending upon its
outcome, may then trigger other CAA requirements. If EPA designates an area as
nonattainment under the SO
2
NAAQS, for example, CAA Sections 172 and 191-192
then direct states to develop state implementation plans (SIPs) that demonstrate how

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the states will attain the NAAQS as expeditiously as practicable. See, e.g., id.
7502(a)(2), (b), (c); 7514(a); 7514a(a).
Upon EPAs promulgation of a new or revised primary NAAQS, Section
110(a)(1)-(2) of the CAA directs each state to adopt and submit for EPA approval an
initial SIP that provides for implementation, maintenance, and enforcement of the
NAAQS, through, inter alia, enforceable emissions limitations and other control
measures. Id. 7410(a)(1)-(2). This set of requirements for states applies even where
there is no designation of the state under Section 107(d), and remains unchanged if the
state is designated attainment or unclassifiable. The required SIP contents would
change, however, if the state is designated nonattainment. For nonattainment areas,
SIPs must include measures to provide for future attainment of the NAAQS as
expeditiously as practicable, including measures to reduce emissions of the relevant
pollutant from sources within nonattainment area boundaries. Id. 7502(c); 7514a(a).
Additionally, certain emissions sources within nonattainment areas must comply with
nonattainment New Source Review (NSR) permitting requirements for the relevant
pollutant, in lieu of the Prevention of Significant Deterioration (PSD) permitting
requirements for such pollutant that otherwise apply in undesignated areas and areas
designated attainment and unclassifiable. 42 U.S.C. 7503; 7471-7475.
B. FACTUAL BACKGROUND
Former Administrator Lisa P. J ackson signed a final rule revising the primary SO
2
NAAQS on J une 2, 2010. The rule was published in the Federal Register on J une 22,
2010, 75 Fed. Reg. 35,520, and became effective on August 23, 2010. In the final rule,
EPA revised the primary SO
2
NAAQS to provide requisite protection of public health

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with an adequate margin of safety. Specifically, EPA established a new 1-hour SO
2

standard at a level of 75 parts per billion. 40 C.F.R. 50.17(a)-(b). The rule was
challenged by several states and state regulatory agencies and several corporations and
industrial associations. Natl Envtl Dev. Assns Clean Air Project v. EPA, 686 F.3d
803 (D.C. Cir. 2012). Those petitions for review were subsequently denied. See id.
(finding challenge to the rulemaking procedure as not within the courts jurisdiction and
concluding that EPA did not act arbitrarily in setting the level of the SO
2
NAAQS).
Since revising the SO
2
NAAQS, EPA has developed for public comment several
draft implementation guidance memoranda concerning the NAAQS, and has conducted
substantial outreach and consultation regarding implementation with state and local
agencies, industry representatives, and environmental and public health organizations.
See, e.g., http://www.epa.gov/airquality/sulfurdioxide/implement.html. In addition,
following the submission of recommended designations by the states, EPA recently
promulgated initial nonattainment designations of 29 areas across the country where
ambient air quality monitoring data in such areas indicated violations of the NAAQS. 78
Fed. Reg. 47,191 (Aug. 5, 2013). In that final designations notice, EPA explained that
for all other areas, at that time, it was not yet prepared to issue designations. Id.
Subsequently, four petitions for judicial review have been filed challenging the final
designations notice, along with one petition for administrative reconsideration and stay of
the notice.
2
These matters are all pending, as of the date of this filing.

2
The pending petitions for review are: AmerenEnergy Resources Generating Co. v.
EPA, No. 13-2959 (7th Cir.); Sierra Club. v. EPA, No. 13-1262 (D.C. Cir.); Treasure
State Resource Industry Assn v. EPA, No. 13-1263 (D.C. Cir.); United States Steel
Corp. v. EPA, No. 13-1264 (D.C. Cir.). United States Steel Corporation also submitted

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On August 26, 2013, Plaintiffs Sierra Club and the Natural Resources Defense
Council brought the present action under the citizen suit provision of the CAA, 42 U.S.C.
7604, alleging that the Administrator has failed to perform a nondiscretionary duty to
complete designations of the remainder of the country following the promulgation of the
revised SO
2
NAAQS. Complaint 34-36 (ECF No. 1). Plaintiffs seek an order
requiring EPA to perform the alleged nondiscretionary duty by a date certain. Id. at 10.
Several of the Proposed Intervenors thereafter filed deadline suits in other district
courts that assert the same alleged nondiscretionary duty as the Plaintiffs here. States of
North Dakota, South Dakota, Nevada, and Texas v. McCarthy, No. 1:13-cv-109-CSM
(D.N.D.) (ECF No. 1); State of North Carolina v. McCarthy, No. 5:13-cv-710-F
(E.D.N.C.) (ECF No. 1).
Neither Plaintiffs allegations nor their requested relief relate to the process for
making designations, the substance of the designations, or the eventual outcome or result
of EPAs designations. Plaintiffs suit seeks only to compel EPA to complete the
designations related to the revised SO
2
NAAQS. Although it is likely that Plaintiffs
desire specific designations related to the revised SO
2
NAAQS, the Complaint concedes
that EPAs duty is only to complete the designations pursuant to 42 U.S.C.
7407(d)(1)(B). ECF No. 1 at 34. The injunctive relief requested is expressly limited to
the completion of the designations and does not include any particular designations of
nonattainment, attainment or unclassifiable, and does not include any particular process
for issuing such designations.

to EPA an administrative petition seeking reconsideration and stay of the final
designations notice, pursuant to CAA Section 307(d)(7)(B), 42 U.S.C. 7607(d)(7)(B).

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ANALYSIS
I. PROPOSED PLAINTIFF-INTERVENORS HAVE NOT SATISFIED THE
RULE 24(a) STANDARD FOR INTERVENTION.

Federal Rule of Civil Procedure 24(a)(2) provides that, on a timely motion, a
court must permit anyone to intervene 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 movants ability to protect its
interest, unless existing parties adequately represent that interest.

In the Ninth Circuit, the analysis of a motion to intervene as of right rests on four
factors:
(1) the motion must be timely; (2) the applicant must claim a
significantly protectable interest relating to the property or transaction
which is the subject of the action; (3) the applicant must be so situated that
the disposition of the action may as a practical matter impair or impede its
ability to protect that interest; and (4) the applicants interest must be
inadequately represented by the parties to the action.

Wilderness Socy v. United States Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en
banc) (citing Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)). A proposed
intervenor must satisfy all four factors. Failure to satisfy any one of the requirements is
fatal to the application. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950
(9th Cir. 2009) (citations omitted).
Considering the factual circumstances and relief requested and available in this
matter, the Proposed Intervenors fail to meet the second, third, and fourth prongs of the
four-part test.
A. Proposed Intervenors Asserted Interests Do Not Constitute a
Significant Protectable Interest in this Case, Which Involves Only the
Deadline for EPA to Designate Areas under the Revised SO
2
NAAQS.

The second prong of the intervention standard requires not just any interest, but
rather a legally protectable interest. Arakaki v. Cayetano, 324 F.3d 1078, 1084 (9th Cir.
2003). The requirement of a significantly protectable interest is generally satisfied when
the interest is protectable under some law, and . . . there is a relationship between the

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legally protected interest and the claims at issue. Although intervention may be based on
an interest that is contingent upon the outcome of the litigation, the intervenor cannot rely
on an interest that is wholly remote and speculative. City of Emeryville v. Robinson, 621
F.3d 1251, 1259 (9th Cir. 2010) (quoting United States v. Union Electric, 64 F.3d 1152
1162 (9th Cir. 1995)). Proposed Intervenors seek intervention as Plaintiffs in this action.
Accordingly, to show an interest that might be affected by this action, Proposed
Intervenors must show that they will be injured if EPA is not required to complete its
designations related to the revised SO
2
NAAQS by a date certain. Proposed Intervenors
have not met this burden.
Here, Proposed Intervenors have no significant protectable interest at stake in
this action. Plaintiffs claims are to enforce the EPAs alleged nondiscretionary duty
under the CAA to promulgate designations by a deadline. Neither the content of nor the
process for issuing EPAs designations are at issue in this litigation. The only legal issue
pertains to EPAs timely performance of designations by the deadlines established under
the CAA. Plaintiffs seek an order setting a deadline for EPA to perform designations
rather than any specific designation or requirements that would apply to the Proposed
Intervenors.
Proposed Intervenors first assert that they have a protectable interest in the
certainty that designations would provide. ECF No. 16 at 8; ECF No. 23 at 6. As an
initial matter, however, Proposed Intervenors are not harmed by a lack of designation, as
any failure to designate on the part of EPA results in states being in the same position as
if the undesignated areas are designated attainment or unclassifiable. Upon EPAs
promulgation of the SO
2
NAAQS in 2010 and in advance of any designations, the states
became subject to the initial SIP requirements of CAA Section 110(a)(1)-(2), 42 U.S.C.
7410(a)(1)-(2), and to the PSD requirements of Sections 161-165, 42 U.S.C. 7471-
7475. Only if EPA designates the remaining undesignated areas as nonattainment or

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takes other action outside of the designations context i.e., only if EPA takes a future
action that has a certain result or outcome that cannot be compelled in this litigation
would that situation change. For example, only the result of a nonattainment designation
triggers the nonattainment SIP planning and new source review requirements of Sections
172, 173 and 191-192, 42 U.S.C. 7502, 7503, 7514-7514a.
Even if EPA were to designate areas as attainment or unclassifiable, those areas
would remain subject to the same statutory requirements that apply to them in the
absence of a designation. Furthermore, an attainment or unclassifiable designation does
not provide states with the certainty that Proposed Intervenors seek to obtain. This is
because an attainment or unclassifiable designation does not preclude a later re-
designation or other action on the part of EPA if information comes to light that an area
designated attainment or unclassifiable is violating the NAAQS or is contributing to an
area that violates the NAAQS. For example, in Montana Sulphur & Chemical Co. v.
EPA, 666 F.3d 1174 (9th Cir. 2012), the Ninth Circuit upheld EPAs finding under CAA
Section 110(k)(5) that the existing SIP for the Billings, Montana area was substantially
inadequate to attain the prior SO
2
NAAQS, notwithstanding the fact that the area was
designated attainment. There, the court rejected the petitioners claim that EPA lacked
the authority to require a revised SIP merely because EPA had previously issued an
attainment designation for the State of Montana. Id. at 1185 n.3. The court stated that
EPAs authority to declare a SIP substantially inadequate to attain or maintain
NAAQS does not hinge on an areas designation. Id. In addition, no matter an areas
designation, if new information indicates NAAQS violations in a designated attainment
or unclassifiable area or contributions from such an area to nonattainment in another

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state, the CAA authorizes EPA to re-designate the area as nonattainment or to direct
abatement of such interstate pollution. See 7407(d)(3), 7426; GenOn Rema, LLC v.
EPA, 722 F.3d 513, 516-17 (3d Cir 2013).
As the Proposed Intervenors moving papers make clear, their main interest is
how EPA will reach future designations and what those designations will be, neither of
which is the subject of this CAA deadline suit. Proposed Intervenors assert without
example or support that resolution of this case could address not only a schedule for
EPA to take action as to the remaining areas to be designated but also the substantive
requirements for making designations. ECF No. 16 at 9; see also ECF No. 23 at 14-15,
19, 23. Proposed Intervenors further contend that if EPA were to ultimately modify the
designations that have been recommended by the states, it could result in greater
regulatory burdens for them. ECF No. 16 at 10-11; ECF No. 23 at 10-11, 16, 17, 19, 21.
But this deadline suit concerns only when EPA will carry out a statutory duty to complete
the designations and not the substance of those designations or the process for issuing
them. 42 U.S.C. 7407(d)(1)(B). Proposed Intervenors stated concerns about the basis
for making designations or the potential outcome of EPA designations are too attenuated
and speculative to constitute a significant protectable interest warranting intervention in
this litigation. This District Court recently denied intervention for the same reason in
another CAA deadline suit. Sierra Club v. EPA, N.D. Cal. Case No. 13-cv-3809-YGR,
ECF No. 28 (Order Denying Motion of National Association of Manufacturers, et al., to
Intervene). In that case, several environmental organizations filed a complaint asserting
that EPA failed to meet a deadline imposed by the CAA to complete review of the
NAAQS for ozone. Id. at 2. The Court denied intervention, based in part on its finding

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that the proposed intervenors interests were in the potential outcome of EPAs review of
the ozone NAAQS rather than the timing of such review. Id. at 5. Cf. Natl Assn of
Clean Water Agencies v. EPA, No. 11-1131, 2013 WL 4417438, at *45 (D.C. Cir. Aug.
20, 2013) (rejecting intervention where the intervenors issues were outside the scope of
those raised by petitioners); Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939,
946 (D.C. Cir. 2005) (an intervening party may join issue only on a matter that has been
brought before the court by another party); Am. Lung Assn v. Reilly, 141 F.R.D. 19, 21
(E.D.N.Y. 1992), affd, 962 F.2d 258 (2d Cir. 1992) (denying intervention where
proposed intervenors asserted interest in the possibility that mandatory review of ozone
NAAQS could result in more stringent standards).
Finally, Proposed Intervenors assert that they have a significant protectable
interest in preserving their ability to adequately and effectively participate in any
settlement that results from this litigation. ECF No. 23 at 9. However, they do not have
to intervene to be able to comment on any settlement.
3
If a citizen suit under the CAA is
resolved through a settlement, there must be an opportunity for public notice and
comment before any agreement can become final. This process is defined by CAA
Section 113(g):
At least 30 days before a consent order or settlement agreement of any kind under
this chapter to which the United States is a party . . . is final or filed with a court,
the Administrator shall provide a reasonable opportunity by notice in the Federal
Register to persons who are not named as parties or intervenors to the action or

3
Further, separate from this litigation, and as indicated infra and shown on EPAs SO
2

implementation website, EPA has already engaged many of the Proposed Intervenors,
industry organizations, and the Plaintiffs in discussions as to the timing of designations
and other programmatic issues, such as whether to require any future data or modeling
requirements for purposes of future designations or other implementation functions under
the revised SO
2
NAAQS.

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matter to comment in writing. The Administrator or the Attorney General, as
appropriate, shall promptly consider any such written comments and may
withdraw or withhold his consent to the proposed order or agreement if the
comments disclose facts or considerations which indicate that such consent is
inappropriate, improper, inadequate, or inconsistent with the requirements of this
chapter. Nothing in this subsection shall apply to civil or criminal penalties under
this chapter.

42 U.S.C. 7413(g).

Moreover, if EPA subsequently intends to modify any of the designation
recommendations submitted by Proposed Intervenors, the CAA requires EPA to provide
at least 120 days notice to those States to provide them with an opportunity to
demonstrate why any proposed modification is inappropriate. 42 U.S.C.
7407(d)(1)(B)(ii).
In any event, even if Proposed Intervenors were granted intervenor status,
intervenors cannot preclude other parties from settling their own disputes and thereby
withdrawing from litigation. Local No. 93, Intl Assn of Firefighters v. Cleveland, 478
U.S. 501, 529 (1986). While an intervenor is entitled to have its objections to settlement
heard by the Court, it cannot block settlement by withholding consent. See id.; see also
Swift & Co. v. United States, 276 U.S. 311, 331-32 (1928) (finding no statutory limits on
Attorney Generals exercise of discretion in settling case); Waller v. Fin. Corp. of Am.,
828 F.2d 579, 583 (9th Cir. 1987) (non-settling parties lack standing to object to a
settlement unless the party can show that it will suffer legal prejudice, such as loss of a
legal claim, because of the settlement). Thus, intervention would not guarantee
Proposed Intervenors participation in any potential settlement negotiations.
For all these reasons, Proposed Intervenors have not met their burden of
establishing a significant protectable interest.


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B. Denying Intervention Would Not Impair or Impede Proposed
Intervenors Interest.

The third prong of the intervention standard requires that without intervention, as
a practical matter, a proposed intervenors ability to protect [that] interest will be
impair[ed] or impede[d]. Fed. R. Civ. P. 24(a)(2). As discussed above, Proposed
Intervernors do not have a significant protectable interest in this litigation that warrants
intervention. Nonetheless, Proposed Intervenors vaguely assert that their interests would
be impaired or impeded to the extent that resolution of this case addressed not only a
schedule for EPA to take action as to the remaining areas to be designated but might also
dictate the means and methodologies used by EPA to reach a decision on what those
designations are to be. ECF No. 23 at 24; see also ECF No. 16 at 9-10 (North Carolina
is concerned that the current Plaintiffs will seek, and the Defendant will agree to, a
resolution to this case that involves not only the timing of the NAAQS delegations, but
also set forth requirements regarding how EPA will make the designations themselves.)
Proposed Intervenors assertions are speculative and wholly unsupported by any
example where a court has directed (or EPA has agreed to) a specific methodology for
performing a nondiscretionary duty (other than statutory and regulatory requirements).
Further, to the extent they believe an order resolving the case would conflict with the legal
requirements set forth in CAA Section 107(d)(1)(B)(ii), 42 U.S.C. 7407(d)(1)(B)(ii), for
a state to respond to EPAs proposed modification to the States recommended
designation, Proposed Intervenors would have the ability to raise such a concern by
commenting on a proposed consent decree during the CAA Section 113(g) public notice
process or by filing an amicus curiae brief with the Court.
Proposed Intervenors do not meet the third prong of the Rule 24(a) standard.

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C. Plaintiffs Interest in Obtaining a Date Certain for EPA to Make
Designations is Sufficient to Represent Proposed Intervenors
Interest in Requiring EPA to Promulgate Designations by a Date
Certain.

It is also not clear that Proposed Intervenors satisfy the fourth prong of the Rule
24(a) standard. When determining whether a proposed intervenors interests are
adequately represented, courts consider the following factors:
(1) whether the interest of a present party is such that it will undoubtedly make all
the intervenors arguments; (2) whether the present party is capable and willing to
make such arguments; and (3) whether the would-be intervenor would offer any
necessary elements to the proceedings that such other parties would neglect.

United States v. City of Los Angeles, 288 F.3d 391, 398 (9th Cir. 2002) (citations
omitted).
Here, Plaintiffs have requested that the Court set a date certain for EPA to make
the remaining designations. Proposed Intervenors do not articulate how their professed
interest in an expeditious schedule, see ECF No. 16 at 11 and ECF No. 23 at 7, differs
from that of Plaintiffs. Further, with respect to the Proposed Intervenors assertions that a
consent decree or order might include substantive requirements for the process or method
EPA must use for designations (and thereby circumvent the requirements of notice-and-
comment rulemaking), such concerns are not supported. There is no indication that
Plaintiffs seek such relief, or that EPA would agree to (or the Court would enter) an order
that would violate the requirements of the CAA or the Administrative Procedure Act.
II. EPA DOES NOT TAKE A POSITION ON WHETHER PERMISSIVE
INTERVENTION SHOULD BE GRANTED UNDER RULE 24(b).

In the alternative to intervention as of right, Proposed Intervenors seek permissive
intervention under Rule 24(b)(1): 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. Courts consider a number of factors in deciding whether to
permit intervention, including:

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the nature and extent of the intervenors interest, their standing to raise relevant
legal issues, the legal position they seek to advance, and its probable relation to
the merits of the case[,] whether changes have occurred in the litigation so that
intervention that was once denied should be reexamined, whether the intervenors
interests are adequately represented by other parties, whether intervention will
prolong or unduly delay the litigation, and whether parties seeking intervention
will significantly contribute to full development of the underlying factual issues in
the suit and to the just and equitable adjudication of the legal questions presented.

Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011) (citing Spangler v. Pasadena
Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)). EPA takes no position on whether
Proposed Intervenors should be granted intervention under Rule 24(b)(1). Although not
requested, EPA would not oppose Proposed Intervenors participation as amicus curiae in
this matter.
The Clean Air Act provides that, if determined to be appropriate, the Court may
award costs of litigation (including reasonable attorney and expert witness fees) to any
party. 42 U.S.C. 7604(d). Accordingly, EPA requests that in the event that
intervention is allowed, the Court make clear that: (a) the United States not be required
to pay any costs or attorneys fees to Plaintiffs that are or may be attributable to Proposed
Intervenors participation in this action; and (b) the United States further not be required
to pay any costs or attorneys fees incurred by Proposed Intervenors.
CONCLUSION
For the foregoing reasons, Proposed Intervenors have not satisfied the standard set
forth in Federal Rule of Civil Procedure 24(a). However, EPA takes no position on
whether whether the Court should grant or deny permissive intervention.

DATED: October 28, 2013 Respectfully submitted,

ROBERT G. DREHER
Acting Assistant Attorney General
Environment and Natural Resources
Division


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/s/ Martha C. Mann
MARTHA C. MANN
Environment and Natural Resources
Division
U.S. Department of J ustice
P.O Box 7611
Washington, DC 20044
Tel: (202) 616-7568 (Rave)
(202) 514-2664 (Mann)
Fax: (202) 514-8865
martha.mann@usdoj.gov

Attorneys for Administrator McCarthy

Of Counsel:

Michael Thrift
United States Environmental Protection Agency
Office of General Counsel
Air and Radiation Law Office (2344-A)
1200 Pennsylvania Ave., N.W.
Washington D.C. 20460

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CERTIFICATE OF SERVICE
I, Martha C. Mann , hereby certify that a true and correct copy of the foregoing
was served by Notice of Electronic Filing this 28th day of October, 2013, upon all ECF
registered counsel of record using the Courts CM/ECF system.

/s/ Martha C. Mann
Martha C. Mann


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CASE NO.: 4:13-cv-3953-SI

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