Tuesday, August 14, 2007

11th Circuit Holds Florida Department of Environmental Protection Clean Water Act Claims Adequately Represented by EPA; Denies Intervention Motion

Per Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 20 Fla. L. Weekly Fed. C 689 (11th Cir.(Fla.) Jun 08, 2007) (NO. 05-13959):

Intervention as of right under Rule 24(a)(2) must be granted when four requirements are met:

(1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that the disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) the applicant's interest will not be represented adequately by the existing parties to the suit. ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11th Cir.1990). We need not discuss the first three requirements because we conclude that the FDEP has not met its burden of proof on the fourth requirement.

The FDEP asserts an interest in "the regulation of water quality of Florida's waters," Br. of Intervenor/Appellee at 7, and contends that with each WQLS added to Florida's impaired waters list, a new TMDL is established and the FDEP must expend resources to establish and enforce pollution-discharge permits, id. at 5-6, 15. The FDEP's objective in this litigation, therefore, is to defend Florida's 2002 List-which was revised and approved by the EPA-and prevent the addition of waterbodies to the list. Id. at 15. This objective is the same as the EPA's objective.

"We presume adequate representation when an existing party seeks the same objectives as the would-be interveners." Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir.1999). While this presumption is "weak," it nonetheless imposes upon the applicant for intervention "the burden of coming forward with some evidence to the contrary." Id. The FDEP has presented no evidence that the EPA may not adequately represent its interests. The FDEP adopts the EPA's brief on appeal in its entirety, and the FDEP does not suggest that it would take a position different from the EPA's in the district court. FN9

FN9. The FDEP asserts that the fact that the EPA added waterbodies to Florida's 2002 List demonstrates that the FDEP and the EPA have different interests. While a proposed intervener and a party might, as a general matter, have different interests, the relevant Rule 24(a)(2) inquiry is whether the party will represent the proposed intervener's interest with respect to the subject matter of the action. In this action, the EPA and the FDEP have the same interest in seeing that the EPA's approval of Florida's 2002 List is upheld so that no additional waterbodies are added to the list.

A similar situation was addressed by the Fifth Circuit in Associated Industries of Alabama, Inc. v. Train, 543 F.2d 1159 (5th Cir.1976). In Train, the Attorney General of Alabama sought to intervene as a defendant in a case challenging as arbitrary and capricious the EPA's disapproval of Alabama's water quality standards and substitution of EPA-promulgated standards. The Court affirmed the denial of intervention as of right, reasoning that although the state had an interest in protecting its citizens from overly lax water quality standards, "[w]hen the issue for decision in this case is stated in terms of the legality of the EPA promulgation under ยง 303 of the [CWA], it is apparent ... that Alabama's interests in the litigation are adequately represented by existing parties." Id. at 1161 n. 7 (internal quotations omitted). This reasoning applies with equal force here: the FDEP's and the EPA's mutual interest in this case is to defend the legality of the EPA's approval of Florida's 2002 List. As in Train, nothing in the record before us "cast[s] doubt upon the will of the EPA to defend the legality of [its] promulgation." Id. at 1161. Likewise, "[n]o claim or defense on behalf of [Florida] has been suggested which is not or will not be asserted by the EPA defendants." Id. While the FDEP hypothesizes that the EPA might have an increased incentive to compromise with Sierra Club in settlement discussions because Florida, not the EPA, bears the brunt of the costs that accompany TMDL development, nothing in the record supports the suggestion that the EPA is more likely to settle. Cf. Clark, 168 F.3d at 462 (granting intervention where a "discussion of settlement that was mentioned on the record at [a] hearing" indicated that the proposed defendant-interveners and the defendants had divergent positions on settlement). Moreover, the Train Court rejected a similar argument-"that the effect of a plaintiff's victory in this suit will be greater upon the State than upon the EPA"-because the argument did not reflect upon the vigor of the EPA's defense of its actions. Train, 543 F.2d at 1160.

We conclude that the interests of the FDEP are adequately represented by the EPA, and we affirm the district court's denial of intervention.


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