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The federal Court of Appeals, D.C. Circuit recently denied three environmental groups' motion to intervene in a lawsuit between the District of Columbia ("District") and Potomac Electric Power Company and Pepco Energy Services, Inc. (collectively, "Pepco"

The federal Court of Appeals, D.C. Circuit recently denied three environmental groups' motion to intervene in a lawsuit between the District of Columbia ("District") and Potomac Electric Power Company and Pepco Energy Services, Inc. (collectively, "Pepco"), which concerned a consent decree under the Resource Conservation and Recovery Act ("RCRA") entered into between the District and Pepco. See District of Columbia v. Potomac Electric Power Co., Civ. No. 11-00282. (D.D.C. Dec. 1, 2011).

The District sued Pepco alleging that between 1985 and 2003, the Pepco facility released toxic polychlorinated biphenyls ("PCBs"), and that over time, these PCBs seeped into the sediment of the nearby Anacostia River. The District and Pepco had reached a settlement of the RCRA claim that called for Pepco to conduct a Remedial Investigation and Feasibility Study ("RI/FS") as the initial step in remedying the contamination. After the required public comment period, the parties subsequently moved for the D.C. Circuit to enter the consent decree that memorializes their settlement.

The environmental groups - the National Resources Defense Council, the Anacostia Riverkeeper, and the Anacostia Watershed Society - filed a motion to intervene in the lawsuit in order to oppose entry of the consent or, in the alternative, to participate in the lawsuit as amici curiae (i.e, "friends of the court") as a way to voice their opposition.

During the public comment period - that is, prior to filing their motion to intervene - the environmental groups had a chance to, and did in fact, comment upon the proposed consent decree. In fact, the District actually considered the environmental groups' comments and negotiated a revised RI/FS consent decree with Pepco based on some of these comments. Nevertheless, the environmental groups still opposed entry of this RI/FS consent decree - even including the revisions based groups' comments.

Judge Beryl A. Howell, writing for the court, among deciding other issues not discussed in this blog post, denied the environmental groups' motion to intervene both "as of right" and "by permission," yet allowed them to participate as amici curiae in the lawsuit.

Under federal civil case procedure, there are two types of intervention: "as of right" and "permissive." See Fed. R. Civ. P. 24.

A potential intervenor must be allowed to intervene as of right if it can show that its motion to intervene is timely; that it has an interest related to the subject of the lawsuit; that it is "so situated" that disposition of the lawsuit may, as a practical matter, impair or impede its ability to protect its interest; and that its interest is not adequately represented by the existing parties in the lawsuit. See Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 65-66 (D.D.C. 2004) (quotations omitted); see also Fed. R. Civ. P. 24(a).

Permissive intervention, on the other hand, is at a judge's discretion, and takes into consideration whether the proposed intervention would "unduly delay or prejudice the adjudication of the original parties' rights." See Fed. R. Civ. P. 24(b).

First, the D.C. Circuit denied the environmental groups' intervention as of right determining that the groups failed to show that they are "so situated" that entry of the consent decree would impair or impede their interests. Judge Howell noted that "[a]s a practical matter, denying intervention would not impair or impede the [environmental groups'] ability to protect their interests, which the [environmental groups] identify as interests in protecting human health, including the health of their members, and in protecting and restoring the Anacostia River, including abatement of toxic contamination in the river." Judge Howell reasoned that the environmental groups' interests would not be impaired or impeded at this time "[s]ince the settlement of the claims in this action would not resolve the ultimate question of how the pollution will be cleaned up." Instead, the court recommended that the environmental groups might be better off, to the extent possible, attempting to intervene in, or even commencing themselves, future lawsuits concerning this pollution of the Anacostia River and the ultimate cleanup of the contaminants.

Moreover, Judge Howell concluded, even if the D.C. Circuit permitted the environmental groups to intervene in this action, they would have no legal right to block entry of the consent decree between the District and Pepco. See United States v. District of Columbia, 933 F. Supp. 42, 47 (D.D.C. 1996) ("[I]f such a citizen were allowed to block entry of a consent decree merely by objecting to its terms it would wreak havoc upon government enforcement actions. Moreover, it is well settled that the right to have its objections heard does not, of course, give the intervenor the right to block any settlement to which it objects.").

Second, the D.C. Circuit denied the environmental group's permissive intervention because the court determined that allowing such intervention would "unduly delay or prejudice the adjudication of the original parties' rights." Judge Howell determined that:

Intervention would likely delay the resolution of this action - and the associated RI/FS for the contaminated site - even further by triggering renewed negotiations over the terms of the consent decree in an attempt to resolve the proposed intervenors' claims simultaneously with the District's claims. In addition, allowing intervention would undermine part of the benefit of entering into a consent decree for the settling parties - namely, minimizing litigation and focusing on getting the RI/FS for the contaminated site underway expeditiously.

Finally, finding that a "finder-of-fact" (i.e., a judge) may benefit from their input in evaluating the merits of the proposed consent decree, the D.C. Circuit did allow the environmental groups to participate as amici curiae - which would allow them to make arguments in opposition to the consent decree before the court - since "the proposed intervenors are environmental organizations with relevant expertise and a stated concern for the issues at stake in this case."

However, despite allowing the environmental groups to participate as amici curiae in the briefing and oral arguments concerning the entry of the proposed RI/FS consent decree, Judge Howell ultimately held that the consent decree was "fair and in the public interest" and "adequate, reasonable, and appropriate," and rejected the environmental groups arguments in opposition.

Conclusion

In conclusion, although the D.C. Circuit denied the environmental groups' motion to intervene, its decision did not really harm the groups' interests insofar as: (1) according to the decision, even if allowed to intervene, the groups would not have been legally able to block a settlement agreement between the other parties, and (2) the groups were still allowed to participate as amici curiae, thereby having their arguments in opposition to the proposed RI/FS consent decree considered by the court.

Perhaps one of the factors Judge Howell considered particularly important in deciding to deny intervention for the environmental groups was that these groups already had a meaningful opportunity to comment upon - and thereby influence - the consent decree between the parties during the public comment period, and that the District actually negotiated changes to the consent decree based upon the environmental group's comments.

Between this and the ability of the environmental groups to further present their arguments in opposition to the proposed consent decree through participation as amici curiae, the court determined that the environmental groups' ability to protect their interests would not be practically impaired nor would the status quo of the Anacostia River be altered in any irreparable way by allowing the RI/FS consent decree to go forward. Judge Howell emphasized that this consent decree was just an initial step in determining the necessary remediation, and would not ultimately determine the final cleanup of the River or the parties responsible for the pollution.

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