IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

vs.

LISA JACKSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION 

AGENCY,

Defendants.

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Case No. 1:11-CV-00100-JDB

 

BCCA APPEAL GROUP’S MOTION TO INTERVENE AND MEMORANDUM OF 

LAW IN SUPPORT THEREOF 

Pursuant to Rule 24 of the Federal Rules of Civil Procedure, BCCA Appeal Group 

(“BCCAAG”), by and through counsel, hereby moves this Court for leave to intervene in this 

action in support of Defendant Environmental Protection Agency (“EPA”). This Motion is based 

on the below memorandum of law, the Declaration of Steven Cook (Exhibit A), and any other 

authorities that the Court may consider. BCCAAG also attaches its proposed Motion to Dismiss 

(Exhibit B) and proposed Answer (Exhibit C).1

Counsel for BCCAAG has conferred with counsel for Sierra Club and EPA. Counsel for 

BCCAAG has been advised that Sierra Club will “not consent” to this motion and that EPA takes 

no position on it.

 

1

 To comply with the requirements of Rule 24(c), BCCAAG has attached its proposed Answer. 

However, if its Motion to Intervene is granted, BCCAAG requests that the Court first docket its 

Motion to Dismiss, with BCCAAG’s Answer to be filed thereafter if necessary.
2

MEMORANDUM OF LAW IN SUPPORT OF MOTION

INTRODUCTION

In this action, Sierra Club alleges, in part, that (i) EPA has an obligation to determine 

whether the Houston-Galveston-Brazoria (“HGB”) area has attained the National Ambient Air 

Quality Standard (“NAAQS”) for ozone that was established by EPA in 1979 (“1-hour ozone 

standard”), and (ii) EPA has failed to make that determination as required by the Clean Air Act 

(“CAA”). Sierra Club asks this Court to order EPA to make a statutory finding as to whether the 

HGB area has attained the 1-hour ozone standard. If this Court grants Sierra Club’s requested 

relief, it will have a direct and significant impact on BCCAAG’s members, as the owners and 

operators of petroleum refineries, chemical manufacturing sites, and other industrial plants in the 

HGB area (collectively, “stationary sources”) that are subject to the rules implementing the 

standard. 

Specifically, the requested relief will alter the regulatory scheme that the stationary 

sources are subject to by requiring EPA to apply the 1-hour ozone standard, which was revoked 

in 2005, instead of the now applicable 8-hour ozone standard. It will rewrite EPA’s Phase I 

ozone implementation rule without regard to applicable administrative procedures; threaten 

industrial sources in the HGB area with millions of dollars in CAA Section 185 penalty fees; and 

interfere with HGB’s resolution of anti-backsliding Section 185 obligations through a 

Termination Determination now pending before EPA. Accordingly, it is critical that the interests 

of the stationary sources are represented in this litigation.

BCCAAG is a non-profit corporation whose members own and operate stationary sources 

in the HGB area. BCCAAG’s purpose includes ensuring that the HGB area meets the air quality

requirements of the CAA in a way that maintains the region’s economic vitality. Because 
3

BCCAAG satisfies the criteria for intervention of right or permissive intervention under Rule 24, 

its Motion to Intervene should be granted. 

BACKGROUND

The CAA requires EPA to set a NAAQS for ozone, which is a standard for the 

concentration of ozone in the air that the states seek to achieve. In 1979, EPA, using 1-hour 

average concentration as the measure, set the standard at 0.12 parts per million (“ppm”) (the “1-

hour ozone standard”). See 44 Fed. Reg. 8202 (Feb. 8, 1979). 

In 1990, Congress amended the CAA to require EPA and the states to develop attainment 

plans for areas not in compliance with that standard. An attainment plan, or state 

implementation plan (“SIP”), includes the methods by which the state will work to attain the 

applicable ozone standard by its attainment date. EPA was also required to classify 

nonattainment areas as marginal, moderate, serious, severe, or extreme, depending on an area’s 

deviation from the 1-hour ozone standard. The HGB area was classified as a “severe” 

nonattainment area and assigned an attainment date of November 15, 2007. See 42 U.S.C. 

§ 7511(a)(1)–(2); 40 C.F.R. § 81.344. 

In addition, the 1990 amendments added a new Section 185 to the CAA to impose 

penalty fees in “severe” and “extreme” areas that failed to attain the 1-hour ozone standard by

their attainment dates. If applicable, Section 185 requires states, as part of their SIPs, to pass 

legislation or develop administrative rules to collect the penalty fees from major stationary

sources in the nonattainment area. 42 U.S.C. § 7511d(a). 

In 1997, EPA adopted a more stringent standard for ozone—the 8-hour ozone standard, 

which is met when the 8-hour average concentration of ozone in a given area is 0.08 ppm or less. 

See 40 C.F.R. § 50.10; 62 Fed. Reg. 38,894 (July 18, 1997). In 2004, to manage the transition 

from the 1-hour ozone standard to the 8-hour ozone standard, EPA promulgated the Phase I 
4

ozone implementation rule. The Phase I rule revoked the 1-hour ozone standard and eliminated 

EPA’s obligation to determine whether an area had “attained” the 1-hour standard by its 

attainment date. See 40 C.F.R. § 50, 51, 81 (as effective June 15, 2004); 69 Fed. Reg. 23,857 

(Apr. 30, 2004); 40 C.F.R. § 51.905(e)(2)(i)(A) (“Upon revocation of the 1-hour [standard] for 

an area, EPA is no longer obligated . . . [t]o determinate pursuant to section 181(b)(2) or section 

179(c) of the CAA whether an area attained the 1-hour [standard] by that area’s attainment date 

for the 1-hour [standard].”). 

Several parties, including the Sierra Club, challenged the validity of the Phase I rule on 

various grounds. See South Coast Air Quality Mgmt Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 

2006), modified on reh’g, 489 F.3d 1245 (D.C. Cir. 2007). The D.C. Circuit upheld nearly all 

aspects of the Phase I rule, and specifically upheld EPA’s revocation of the 1-hour ozone 

standard. The court explained that:

EPA retains the authority to revoke the one-hour standard so long 

as adequate anti-backsliding provisions are introduced. 

Additionally, EPA was not, as the Environmental petitioners 

contend, arbitrary and capricious in withdrawing the one-hour 

requirements, having found in 1997 that the eight-hour standard 

was “generally even more effective in limiting 1-hour exposures of 

concern than is the current 1-hour standard.” [62 Fed. Reg. at 

38,863] The only remaining requirements as to the one-hour 

NAAQS are the anti-backsliding limitations.

472 F.3d at 899 (emphasis added). Further, the court, by not expressly rejecting EPA’s 

elimination of its obligation to make attainment findings under the 1-hour standard as of an 

area’s attainment date, upheld that portion of the Phase I rule.2 

 

2

 The only provisions of the Phase I rule that the D.C. Circuit vacated were those that addressed 

the following requirements: New Source Review, or “NSR” (codified at 40 C.F.R. § 

51.905(e)(4)(i)); Section 185 fees (codified at 40 C.F.R. § 51.905(e)(2)(ii)); Contingency plans 

(codified at 40 C.F.R. § 51.905(e)(2)(iii)); and Motor Vehicle Emission Budgets (codified at 40 
5

Although the 1-hour ozone standard was validly revoked and replaced with the 8-hour 

standard, the D.C. Circuit and EPA interpreted Section 172(e) of the CAA to require EPA to 

promulgate “anti-backsliding” measures that are “not less stringent than the controls” that would 

have been “applicable” if the 1-hour ozone standard had remained in place. See CAA § 172(e), 

42 U.S.C. § 7502(e); South Coast, 472 F.3d at 900. That is, Section 172(e) does not require 

Section 185 fees, only an anti-backsliding measure that is “not less stringent” than a Section 185 

fee program. 

And EPA, consistent with Section 172(e) and South Coast, has begun to promulgate antibacksliding measures for areas that failed to attain the 1-hour ozone standard, without the 

imposition of Section 185 fees. For example, two “severe” nonattainment areas recently sought 

Termination Determinations (the Baton Rouge, Louisiana and Sacramento, California areas), and 

in 2011, EPA proposed administrative rules that would establish Section 185 “Termination 

Determinations” for those two areas. If finalized, these Termination Determinations would 

include a finding by EPA that the areas in question have currently attained the revoked 1-hour 

ozone standard due to permanent and enforceable emission reductions and encompass a legal 

determination that the areas in question are no longer subject to anti-backsliding requirements 

associated with Section 185 fees. See 76 Fed. Reg. 28,696 (May 18, 2011) (Sacramento Metro 

Area); 76 Fed. Reg. 17,368 (Mar. 29, 2011) (Baton Rouge). Notably, EPA proposed no findings 

as to these areas’ status with respect to the revoked 1-hour ozone standard as of their attainment 

dates, which have passed. See 40 C.F.R. § 81.305 (recognizing Sacramento as a “severe-15” 1-

hour ozone nonattainment area (an area with a November 15, 2005 attainment date; see 42 

 

C.F.R. § 51.905(e)(3)). 472 F.3d at 900–05; 489 F.3d at 1248 (confirming that the Phase I rule 

was “vacated only to the extent that the court has sustained challenges to it”).
6

U.S.C. § 7511(a)(1) & tbl. 1)) 68 Fed. Reg. 20,077 (Apr. 24, 2003) (establishing November 15, 

2005 as Baton Rouge’s 1-hour ozone attainment date). 

In addition, a guidance memorandum issued by EPA on January 5, 2010 points out that 

“once an area attains the 1997 8-hour ozone standard, which replaced the now revoked 1-hour 

standard, the purpose of retaining the section 185 fee program as an anti-backsliding measure 

would also be fulfilled as the area would have attained the 8-hour standard for which the fee 

program was retained as a transition measure.” Memorandum from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards; regarding Guidance on Developing Fee Programs 

Required by Clean Air Act Section 185 for the 1-Hour Ozone NAAQS, at 3 (Jan. 5, 2010) 

(attached as Exhibit D).3 This guidance memorandum also explained that, because the 8-hour 

ozone standard is more stringent than the 1-hour ozone standard, a Termination Determination 

may also be available for an area if that area has attained the 8-hour ozone standard. See id.

In the case of HGB, although currently designated as a “severe” nonattainment area for 

the 8-hour ozone standard, see 40 C.F.R. § 81.344, available monitoring data indicate that the 

HGB area attained the 8-hour ozone NAAQS as of the 2007–2009 measurement period. See

Finding of Failure to Submit Certain State Implementation Plans Required for the 1-Hour Ozone 

NAAQS, 75 Fed. Reg. 232 (Jan. 5, 2010) (noting that current air quality data indicate that the 

HGB area has attained the 1997 8-hour standard). Accordingly, the State of Texas has submitted 

a request to EPA for a Termination Determination based on HGB’s attainment of the 8-hour 

ozone standard to satisfy the anti-backsliding requirements of Section 172(e) with respect to 

Section 185 fees. Once the Termination Determination request is approved by EPA in 

 

3

 A judicial challenge to this guidance document is currently pending before the D.C. Circuit. 

See NRDC v. EPA, No. 10-1056 (D.C. Cir.).
7

fulfillment of Section 172(e), HGB would no longer face any risk of Section 185 fees under the 

1-hour ozone standard.4

ARGUMENT

I. BCCAAG IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT.

Under Federal Rule of Civil Procedure 24(a), a movant has a right to intervene when four 

criteria are met: (i) the request for intervention is timely; (ii) the movant has an interest related to 

the property or transaction at issue; (iii) disposition of the action may impair or impede the 

movant’s ability to protect his interest; and (iv) the movant’s interest may not be adequately 

represented by the existing parties. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. 

Cir. 2003). In the D.C. Circuit, the movant must also establish Article III standing to intervene 

as of right. Here, BCCAAG has standing under Article III and satisfies each requirement under 

Rule 24(a). Therefore, BCCAAG is entitled to intervene as a matter of right.

A. BCCAAG Has Associational Standing Under Article III.

BCCAAG is a non-profit corporation whose members include the owners and operators 

of industrial facilities that are major stationary sources of air emissions in HGB. Declaration of 

Steven Cook ¶¶ 2, 5 (“Cook Decl.”). Accordingly, BCCAAG has standing based on its 

membership because: (i) the interests at stake here are germane to its purpose; (ii) participation 

of individual members is not necessary; and (iii) BCCAAG’s members would have standing in 

their own right. See Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). 

First, the interests at stake are clearly germane to BCCAAG’s purpose. BCCAAG’s 

goals include ensuring that Texas meets the air quality requirements of the CAA in a way that 

 

4

 The Texas Commission on Environmental Quality (“TCEQ”) estimated in 2009, in connection 

with a proposed rule to implement Section 185 fees, that the annual cost for HGB major sources 

“could be between $73,134,000 and $124,269,292.” 34 Tex. Reg. 8644, 8651 (Dec. 4, 2009). 

The proposed rule was not finalized.
8

maintains the economic vitality of the state. Cook Decl. ¶ 2. BCCAAG’s ability to achieve that 

goal is necessarily impacted by changes to federal ozone regulations and the SIP provisions that 

govern stationary sources. That is why BCCAAG has been heavily involved in Texas’s 

development of SIPs over the last decade. In fact, BCCAAG was formed in 2001 by members of 

the Business Coalition for Clean Air in connection with the development of the now-approved 

HGB SIP for the 1-hour ozone standard. Id. ¶¶ 3–4. 

For those reasons, courts have often found that BCCAAG has standing in litigation 

involving the regulation of ozone in Texas. For example, BCCAAG challenged aspects of the 

attainment plan that was adopted for HGB when the 1-hour ozone standard was applicable. The 

Fifth Circuit affirmed that BCCAAG had standing to assert the challenge:

BCCA has suffered an injury in fact in the form of the costs of 

compliance with the Houston SIP’s control measures, along with 

the added risk that its members will be responsible for any 

penalties assessed for the Houston SIP’s failure to attain the ozone 

standard by the statutory deadline. BCCA’s injury is fairly 

traceable to EPA because, if BCCA’s claims are true, EPA 

unlawfully approved a SIP that failed to meet minimum statutory 

requirements. Finally, BCCA’s injury is redressable by a decision 

in its favor because EPA would be forced to disapprove the 

portions of the Houston SIP the court finds incompatible with the 

CAA. In addition, the approved SIP is federally enforceable 

against BCCA’s members, so that a favorable decision would 

redress that threat of injury as well. Accordingly, the court finds 

that BCCA has established its right to sue the EPA under Article 

III.

BCCA Appeal Grp v. EPA, 355 F.3d 817, 826 (5th Cir. 2003) (internal citations omitted). 

Subsequently, when Texas revised its attainment plan, BCCAAG sought, and was granted, leave 

to intervene in support of EPA in response to a challenge to the revised attainment plan brought 

by an environmental organization. See Galveston-Houston Ass’n for Smog Prevention v. EPA, 

289 F. App’x 745 (5th Cir. 2008). BCCAAG also played a key role in the entry of a 2004 mid-
9

course review SIP that substituted more effective control measures for those in the previous SIP. 

Cook Decl. ¶¶ 3–4. 

Because Sierra Club is attempting to force EPA to take action that effectively rewrites 

federal ozone regulations, and because BCCAAG’s interests involve ensuring that ozone 

regulations applicable in HGB are consistent with the region’s economic vitality, BCCAAG 

easily satisfies the first associational standing factor.

Second, there is plainly no need for any of BCCAAG’s members to participate 

individually in this action. The issues raised by Sierra Club, and the defenses to be raised by

BCCAAG, concern only statutory and regulatory interpretation and other questions of law. The 

participation of an individual member is not necessary, nor would it aid the parties or the Court 

in resolving this case.

Third, BCCAAG’s members have standing to intervene themselves. To establish 

standing under Article III, a party must show (i) an injury-in-fact, (ii) causation, and (iii) 

redressibility. Fund for Animals, 322 F.3d at 732–33. BCCAAG can satisfy the injury-in-fact 

prong, and it necessarily follows that such injury would be caused by Sierra Club’s requested 

relief and that not awarding Sierra Club its requested relief would redress the identified injury by

preventing it from occurring in the first place. See, e.g., id.; County of San Miguel Colo. v. 

MacDonald, 244 F.R.D. 36, 45 (D.D.C. 2007).5 If granted, Sierra Club’s requested relief would 

prevent BCCAAG from exercising important procedural rights in addition to causing significant 

substantive injuries.

 

5

 Although BCCAAG is acting on behalf of its members, for simplicity’s sake, BCCAAG refers 

to itself as the relevant party.
10

1. BCCAAG is threatened with an injury-in-fact because the requested relief 

will effectively require EPA to vacate valid regulations and to impose a 

new regulatory scheme without notice and comment.

As discussed above, EPA revoked the 1-hour ozone standard in 2005, and that revocation 

was upheld in 2006. Therefore, for the last five years, stationary sources have operated under the 

reasonable expectation that the 8-hour ozone standard was the only governing standard. 

Strikingly, in its Complaint, Sierra Club suggests that the 1-hour ozone standard was not 

revoked, and asks this Court to force EPA to apply it as though it remained in force. Compl. 

¶¶ 42–46.6 Further, Sierra Club asserts that, despite the plain language of its rules, EPA must 

determine whether HGB attained the 1-hour ozone standard and that Section 185 fees are directly 

triggered by such a determination. Id. ¶¶ 39–40. 

Sierra Club’s attempt to force EPA to apply the 1-hour standard as it requests is nothing 

but an end run around the administrative procedures that EPA must follow when making 

significant changes, such as as switching from one NAAQS to another. Those procedures 

require, in part, that EPA give interested parties an opportunity to notice and comment. See 42 

U.S.C. § 7607(d); 5 U.S.C. § 553. Given that BCCAAG is directly impacted by changes to the 

ozone NAAQS and associated regulations, it would turn the concept of notice and comment on 

its head if BCCAAG were precluded from having any role in the process that amends the Phase I 

 

6

 Paragraph 44 of Sierra Club’s complaint mischaracterizes the South Coast decision on 

rehearing as “clarifying the vacatur of the Phase I Rule is limited to issues on which the Court 

granted petitions for review, which includes EPA’s revocation of the 1-Hour Ozone standard.” 

In fact, the relevant South Coast language is as follows: “We also grant their [EPA’s and the 

Environmental Petitioners’] request that the 2004 Rule [the Phase I rule] be vacated only to the 

extent that the court has sustained challenges to it.” 489 F.3d at 1248 (emphasis added). Simply 

put, South Coast did not “sustain” a challenge to EPA’s revocation of the 1-hour ozone standard.
11

rule, and such a result would “injure” BCCAAG.7 Cf. American Horse Prot. Ass’n v. Veneman, 

200 F.R.D. 153, 158 (D.D.C. 2001) (granting motion to intervene and explaining that “the 

participation of the persons most directly affected by the Operating Plan is utterly consistent with 

the notice and opportunity to be heard concerns that lie at the heart of the due process clause”). 

Just as BCCAAG would have the opportunity to comment in an administrative proceeding, it 

should have the opportunity to participate in this action. 

In fact, BCCAAG’s posture in this litigation is analogous to an industry group that sought 

to intervene in South Coast. There, the D.C. Circuit reversed the district court’s denial of 

intervention, explaining that:

In order for NPRA [the National Petrochemical and Refiners 

Association] to have standing, there must be a substantial 

probability that [EPA’s] action created a demonstrable risk, or 

caused a demonstrable increase in an existing risk, of injury to the 

particularized interests of NPRA. We have little difficulty

concluding that NPRA has met this threshold. It is inconceivable 

that EPA’s comprehensive reworking of an Act that specifically

controls the requirements for industrial pollution would fail to 

affect the requirements of even a single NPRA member.

South Coast, 472 F.3d at 895–96 (emphasis added; internal quotations and citations omitted). 

The same conclusion should be reached here. Given that Sierra Club seeks to rewrite the Phase I 

rule, the parties that will be affected by the proposed rewriting have a vested interest in 

participating in the process that accomplishes that result. 

The facts of this case are also similar to those in County of San Miguel. There, the United 

States Fish and Wildlife Service (“FWS”) made a determination that a certain species of bird did 

not warrant classification as an endangered species. County of San Miguel, 244 F.R.D. at 41. 

 

7

 BCCAAG does not concede that this Court has jurisdiction to grant the relief requested. To the 

contrary, as explained in BCCAAG’s proposed Motion to Dismiss, this Court lacks jurisdiction 

to entertain Sierra Club’s claims.
12

The plaintiffs challenged the “not warranted” classification, and several associations sought to 

intervene. Id. at 44. The court held that, because the plaintiffs sought to set aside FWS’s 

classification, and because the members of the associations benefitted from the current 

classification, the associations had established an injury-in-fact, even though the requested relief 

would have not resulted in a finding that the bird was endangered. Id. at 45. Likewise, in 

American Horse Protection Association v. Veneman, the court found that intervenors had 

standing because the plaintiffs sought to invalidate a plan adopted by the U.S. Department of 

Agriculture relating to the soring of horses. 200 F.R.D. at 157. 

In this case, because Sierra Club seeks to invalidate the Phase I rule under which 

BCCAAG currently operates and has relied on for the last several years in conducting its affairs, 

BCCAAG would suffer if it is not allowed to participate in this action.

2. BCCAAG is threatened with an injury-in-fact because the requested relief 

allegedly requires Section 185 fees for HGB.

Sierra Club requests that this Court order EPA to determine whether HGB has attained 

the 1-hour ozone standard, and asserts that this determination will require Section 185 fees if 

HGB did not attain the 1-hour standard by its attainment date. See Compl. ¶¶ 39–40; Prayer for 

Relief. The imposition of Section 185 fees is of great importance to HGB given that the TCEQ 

has estimated that Section 185 fees could be between $73 and $124 million dollars per year for 

HGB major sources.8 See 34 Tex. Reg. at 8646, 8651. Members of BCCAAG who own or 

operate major sources in HGB would be subject to any such fees. Cook Decl. ¶¶ 5–7. 

 

8

 “Major sources” or “major stationary sources” are a subset of “stationary sources” that have air 

emission in excess of specified numerical thresholds. See 42 U.S.C. § 7602(j). A stationary

source’s status as a major source is relevant to various requirements under the CAA and 

associated regulations, including whether that stationary source would be subject to Section 185 

fees. See, e.g., 42 U.S.C. § 7511d(a).
13

Consequently, members of BCCAAG are threatened with a concrete, financial injury if this 

Court grants the relief sought by Sierra Club. 

3. BCCAAG is threatened with an injury-in-fact because the requested relief 

will interfere with HGB’s resolution of anti-backsliding obligations 

through a Termination Determination from EPA.

EPA recently proposed to make Termination Determinations for the Baton Rouge and 

Sacramento areas, based on findings that those areas have now attained the 1-hour ozone 

standard by permanent and enforceable emissions reductions. See 76 Fed. Reg. 28,696; 76 Fed. 

Reg. 17,368. EPA’s Section 185 guidance indicates that EPA can also make a Termination 

Determination based on attainment of the 8-hour ozone standard. EPA Memorandum, supra at 

3. These actions are consistent with Section 172(e) and the South Coast court’s charge that EPA 

develop “equivalent” measures to Section 185, in light of the revocation and replacement of the 

1-hour ozone standard by the more stringent 8-hour ozone standard.

On May 14, 2010, the TCEQ submitted a Termination Determination request for the 

HGB area based on HGB’s attainment of the 8-hour ozone standard. See TCEQ, Request for 

Determination Regarding Termination of the One-Hour Ozone Section 185 Fee Obligation.

9

 

EPA has not yet proposed any action on this request. However, favorable action by EPA would 

confirm that anti-backsliding obligations have been met, and thus that Section 185 fees are not 

owed by major sources in HGB, including members of BCCAAG.

Sierra Club’s lawsuit threatens to undermine EPA action on the Termination 

Determination Request, thereby injuring BCCAAG members who would directly benefit from 

 

9

 A copy of TCEQ’s Termination Determination request is available at 

http://www.tceq.texas.gov/airquality/point-source/psei/sipsection185.html, by following the link 

titled “The Texas Commission on Environmental Quality Request For Section 185 Fee Program 

Termination Determination for Houston-Galveston-Brazoria (HGB) One-Hour Ozone Standard 

Nonattainment Area, May 14, 2010.”
14

approval of a Termination Determination—once a Termination Determination is approved that is 

consistent with Section 172(e), Section 185 fees will not be required. Indeed, according to Sierra 

Club, Section 185 fees would be owed when EPA makes a finding that HGB failed to attain the 

1-hour ozone NAAQS, apparently even if EPA later determines that HGB has an equivalent 

program that fulfills Section 172(e)’s anti-backsliding requirements, i.e., a substitute for Section 

185 fees. Thus, Sierra Club’s effort to force 1-hour ozone attainment status findings, and Section 

185 fees, amounts to an effort to foreclose the Termination Determination process. In this way, 

Sierra Club’s lawsuit threatens to impair HGB’s effort to resolve anti-backsliding obligations 

through a Termination Determination.

4. BCCAAG’s injuries-in-fact are caused by Sierra Club’s requested relief.

As explained above, Sierra Club’s requested relief is an order from this Court that EPA 

take actions that would injure BCCAAG. Without Sierra Club’s lawsuit, this Court would not 

have the occasion to enter such an order. Thus, Sierra Club’s request for relief is clearly the 

cause of the three injuries-in-fact—vacating of valid regulations without notice and comment, 

imposition of Section 185 fees, and interference with HGB’s Termination Determination—with 

which BCCAAG is threatened.

5. BCCAAG’s injuries-in-fact likely would be redressed by a decision from 

this Court favorable to BCCAAG.

BCCAAG’s injuries-in-fact are clearly redressable by a decision from this Court that is 

favorable to BCCAAG. Indeed, as explained above, Sierra Club’s requested relief is an order 

from this Court that EPA take actions to injure BCCAAG. It follows logically that this Court’s 

refusal to issue such an order would prevent the injuries that the issuance of such an order would 

cause. Further, the very fact that Sierra Club sought the EPA actions in question by filing this 

lawsuit demonstrates Sierra Club’s belief that EPA would not have taken such actions absent 
15

judicial compulsion to do so. Thus, BCCAAG’s injuries at stake in this lawsuit would be 

redressed by a judgment against Sierra Club.

B. BCCAAG’s Motion To Intervene Is Timely.

“‘Timeliness is to be judged in consideration of all the circumstances, especially 

weighing the factors of time elapsed since the inception of the suit, the purpose for which 

intervention is sought, the need for intervention as a means of preserving the applicant’s rights, 

and the probability of prejudice to those already parties in the case.’” Akiachak Native Cmty. v. 

U.S. Dep’t of Interior, 584 F. Supp. 2d 1, 5 (D.D.C. 2008) (quoting United States v. Am. Tel. & 

Tel. Co., 642 F.2d 1285, 1295 (1980)). “The critical factor is whether any delay in moving for 

intervention will prejudice the existing parties to the case.” Id. (concluding no prejudice would 

result where intervention was sought prior to the filing of dispositive motions).

BCCAAG’s motion is timely. Sierra Club filed its complaint less than six months ago, 

and in the intervening time, the parties have engaged in no motions practice or discovery. 

Further, because this Court has not yet set a briefing schedule and BCCAAG has attached its 

proposed Motion to Dismiss, BCCAAG’s participation will not delay resolution of this case or 

prejudice any existing party.

C. BCCAAG Has An Interest In This Action.

BCCAAG will suffer an injury-in-fact if Sierra Club receives its requested relief. See 

infra at 8–11. As such, BCCAAG has also demonstrated as a matter of law a sufficient interest 

in the subject of the action. See Fund for Animals, 322 F.3d at 735 (“Our conclusion that the 

[intervenor] has constitutional standing is alone sufficient to establish that the [intervenor] has an 

interest relating to the property or transaction which is the subject of the action.”).
16

D. Disposition Of This Action Will Impair BCCAAG’s Ability To Protect Its 

Interests.

In assessing whether the movant’s interests will be impaired, courts focus on the 

“practical consequences” of denying intervention. American Horse Prot., 200 F.R.D. at 158. In 

cases involving administrative law, like this one, courts also consider “the convenience to the 

movant of permitting intervention in the present suit as opposed to denying intervention merely 

because future challenges remain available.” Id. To meet its burden, the movant only has to 

show that reestablishing the status quo, presuming the movant’s interests are impaired, would be 

“difficult,” not impossible. See Fund for Animals, 322 F.3d at 735 (movant’s interests impaired 

“[r]egardless of whether [movant] could reverse unfavorable ruling by bringing a separate 

lawsuit”); Akiachuk Native Cmty., 584 F. Supp. 2d at 8 (movant’s interests impaired despite 

ability to challenge agency action in future proceeding); County of San Miguel, 244 F.R.D. at 47 

(movant’s interest impaired even though movant could participate in subsequent rulemaking that 

would determine whether to list species as endangered).

Sierra Club’s requested relief will make it more difficult for BCCAAG to protect its 

interests for at least two reasons. First, Sierra Club plainly seeks judicially-ordered statutory 

findings with respect to the revoked 1-hour standard in contravention of EPA’s rules. Second, 

BCCAAG would have to take other actions to attempt to prevent the imposition of Section 185 

fees in HGB despite its clean air.

E. BCCAAG’s Interest May Not Be Adequately Represented By The Current 

Parties.

The party seeking to intervene need only show that the existing parties “may not” 

adequately represent its interests, and need not establish that the representation “will in fact be 

inadequate.” Hardin v. Jackson, 600 F. Supp. 2d 13, 16 (D.D.C. 2009). This burden is 

“minimal” and “not onerous.” Fund for Animals, 322 F.3d at 735. Therefore, intervention 
17

“should” be granted “unless it is clear that the existing party will provide adequate representation 

for the absentee.” Hardin, 600 F. Supp. 2d at 16 (quoting Amer. Tel. & Tel. Co., 642 F.2d at 

1293). Further, adequate representation is not guaranteed merely because there is “some 

overlap” or “partial congruence” of interests. Fund for Animals, 322 F.3d at 736–37. Similarly, 

“interests need not be wholly adverse before there is a basis for concluding that existing 

representation of a different interest may be inadequate.” Id. at 737 (citations and quotations 

omitted). 

Accordingly, “the D.C. Circuit has repeatedly held that private companies can intervene 

on the side of the government, even if some of their interests converge.” Hardin, 600 F. Supp. 

2d at 16. That is because “government entities are usually charged with representing the 

interests of the American people, whereas aspiring intervenors, like the intervenor-applicants 

here, are dedicated to representing their personal interests or the interests of their members or 

members’ businesses.” County of San Miguel, 244 F.R.D. at 48; accord Fund for Animals, 322 

F.3d at 737 (movant satisfied its burden where it sought to protect interests that were “more 

narrow and parochial” than the government’s interests); American Horse Protection, 200 F.R.D. 

at 159 (granting intervention of right where intervenors had “more narrow interests and 

concerns” than the government entity); Southern Utah Wilderness v. Norton, No. Civ. A. 01-

2518 (CKK), 2002 WL 32617198, at *5 (D.D.C. June 28, 2002) (concluding that government 

entity may not adequately represent specific interests of private entity).

Here, BCCAAG has much more narrow interests than EPA, and it is not only possible 

but likely that EPA will not adequately represent those interests. For example, although EPA is 

generally interested in regulating air quality, it has no specific interest in ensuring that BCCAAG 

can participate in any process that rewrites the Phase I rule. Nor does EPA have a specific 
18

interest in protecting HGB’s interest in seeking a prompt Termination Determination. In fact, 

EPA’s own conduct illustrates that its litigation strategy may be governed by policy 

considerations outside the merits of Sierra Club’s claims. See Mot. for Extension of Time to Set 

Briefing Schedule (Dkt. # 9) (explaining that EPA is working towards a settlement with Sierra 

Club); see also Kleissler v. United States Forest Serv., 157 F.3d 964, 974 (3d Cir. 1998) 

(“Although it is unlikely that the intervenors’ economic interests will change, it is not realistic to 

assume that the agency’s programs will remain static or unaffected by unanticipated policy 

shifts.”); American Horse Prot., 200 F.R.D. at 159 (representation may be inadequate where 

“budgetary and manpower demands may drive how much time the USDA can devote to this 

litigation and whether it can settle this case with plaintiffs”). Notably, the threat of Section 185 

fees (an injury to BCCAAG's members) is not shared by EPA or Sierra Club.

II. BCCAAG SHOULD BE PERMITTED TO INTERVENE.

BCCAAG also satisfies the standard for permissive intervention. Federal Rule of Civil 

Procedure 24(b)(1) provides that a court may allow intervention when the movant “shares with 

the main action a common question of law or fact.” Courts should also consider whether the 

requested intervention will “unduly delay or prejudice the adjudication of the original parties’ 

rights.” Fed. R. Civ. P. 24(b)(3). 

In this case, the claims or defenses of BCCAAG focus on the same key questions of law 

at issue in the main action, i.e., whether EPA is obligated to make the findings sought by Sierra 

Club and whether those findings would automatically lead to the imposition of Section 185 fees. 

And, as discussed above, BCCAAG’s intervention will not delay resolution of this action or 

prejudice any existing parties. Therefore, in the interests of fairness, BCCAAG should be 

permitted to intervene.
19

CONCLUSION

For the foregoing reasons, the Court should grant BCCAAG’s Motion to Intervene. 

Respectfully submitted,

/s/ Richard P. Sobiecki

Richard P. Sobiecki (D.C. Bar # 500163)

Baker Botts L.L.P.

1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 639-7906

rich.sobiecki@bakerbotts.com

Zachary L. Craft

Baker Botts L.L.P.

One Shell Plaza 

910 Louisiana

Houston, Texas 77002

(713) 229-1133

zachary.craft@bakerbotts.com

Attorneys for BCCA Appeal Group
20

CERTIFICATE OF SERVICE

I hereby certify that on June 8, 2011, the foregoing Motion to Intervene and all 

attachments were sent via electronic mail and Federal Express to the following counsel of record:

Eric G. Hostetler 

UNITED STATES DEPARTMENT OF JUSTICE 

Environment & Natural Resources Division 

601 D St. NW 

Washington, DC 20004 

(202) 305-2326 

(202) 514-8865 (fax) 

eric.hostetler@usdoj.gov

Robert Steven Ukeiley

435 R Chestnut Street 

Suite 1 

Berea, KY 40403 

(859) 986-5402 

(866) 618-1017 (fax) 

rukeiley@igc.org

/s/ Richard P. Sobiecki

Richard P. Sobiecki