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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

WILDEARTH GUARDIANS, 

 

 Plaintiff, 

 

 v. 

LISA JACKSON, in her official 

capacity as Administrator of the 

Environmental Protection Agency, 

 Defendant. 

________________________________/ 

No. C 09-2453 CW 

ORDER DENYING 

MOTION TO 

INTERVENE AND 

MOTION FOR AN 

ORDER TO SHOW 

CAUSE 

(Docket Nos. 43 

and 46) 

Proposed Intervenors State of North Dakota and North Dakota 

Department of Health (North Dakota) seek intervention in this 

action for the limited purpose of requesting that this Court issue 

an order to show cause why Defendant United States Environmental 

Protection Agency (EPA) Administrator1 should not be held in 

contempt for exceeding its authority under the consent decree 

previously entered in this action. The EPA opposes both motions. 

Having considered the papers submitted by the parties and their 

oral arguments, the Court DENIES North Dakota’s motions. 

BACKGROUND 

This action was originally initiated by Plaintiff WildEarth 

Guardians on June 3, 2009, pursuant to the Clean Air Act’s citizen 

 1 The Court adopts the terminology used by Defendant and 

Proposed Intervenors in their papers and will refer to Defendant 

as the EPA throughout this Order. 

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suit provision, 42 U.S.C. § 7604(a)(2), which allows any person to 

bring an action against the EPA “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.” WildEarth 

alleged that the EPA had failed to perform a non-discretionary 

duty either to approve a State Implementation Plan (SIP) or 

promulgate a Federal Implementation Plain (FIP) for California, 

Colorado, Idaho, New Mexico, North Dakota, Oklahoma, and Oregon to 

satisfy the requirements of Clean Air Act section 110(a)(2)(D)(i), 

42 U.S.C. § 7410(a)(2)(D)(i), regarding interstate transport of 

pollution and the 1997 National Ambient Air Quality Standards for 

eight-hour ozone and fine particulate matter. The EPA has 

separate authority and obligations regarding regional haze 

requirements, pursuant to Clean Air Act section 169A, 42 U.S.C. 

§§ 7491, 7492, which were not at issue in this case. 

On February 23, 2010, the Court approved the parties’ consent 

decree. Docket No. 26. The consent decree has since been 

modified on several occasions by stipulation or order of the 

Court. The consent decree requires the EPA to approve a SIP, 

promulgate a FIP, or approve a SIP in part and promulgate a 

partial FIP by specified dates for each of the seven States for 

each of the four elements of 42 U.S.C. § 7410(a)(2)(D)(i). As a 

result of several amendments and extensions of deadlines, the 

consent decree currently requires that the EPA must propose action 

to address the visibility requirement related to interstate 

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transport for North Dakota by September 1, 2011, Docket No. 38, 

and take final action by March 2, 2012, Docket No. 68. 

On September 1, 2011, the EPA notified North Dakota that the 

agency proposed the partial approval of North Dakota’s regional 

haze SIP and interstate transport SIP, combined with a partial 

regional haze FIP and interstate transport FIP. Westfall Decl., 

Ex. A. The EPA subsequently published its proposed actions in the 

Federal Register on September 21, 2011. 76 F.R. 58570. In the 

notice, the EPA states that the “proposed [interstate transport] 

FIP consists of a finding that the combination of our proposed 

partial approval of North Dakota’s Regional Haze SIP and our 

proposed partial FIP for regional haze for North Dakota will 

satisfy the interstate transport requirements of section 

110(a)(2)(D)(i)(II) with respect to visibility.” 76 F.R. 58574. 

Because of the overlap between the visibility and regional haze 

requirements, the EPA determined that simultaneous action would be 

“the most efficient approach” to address both, without creating 

two separate sets of requirements for compliance. Id.

In the notice in the Federal Register, the EPA referred to 

the consent decree entered into by this Court several times. 

Specifically, the EPA referred to the deadlines contained in the 

consent decree, and stated that, in regards to an interstate 

transport SIP or FIP, it was required to sign a notice of proposed 

rulemaking by September 1, 2011. 76 F.R. 58576. The EPA also 

stated, “Given our September 1, 2011 deadline to sign this notice 

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of proposed rulemaking under the consent decree,” it lacked 

sufficient time to act on or consider fully voluminous exhibits 

that North Dakota had submitted on July 28, 2011 with a proposed 

amendment to its regional haze SIP. 76 F.R. 58579. The EPA 

nevertheless proposed certain actions on the aspects of this 

submission that the agency was able to evaluate in the available 

time, even though under 42 U.S.C. § 7410(k)(2), the EPA was “not 

required to act on a SIP submittal until 12 months after it is 

determined to be or deemed complete.” Id.

DISCUSSION 

North Dakota seeks to intervene as a matter of right, or in 

the alternative, through permissive intervention, for the limited 

purpose of seeking an order directing the EPA to show cause why it 

should not be held in contempt for violating the terms of the 

consent decree. 

I. Intervention as a Matter of Right 

To intervene as a matter of right under Rule 24(a)(2) of the 

Federal Rules of Civil Procedure, an applicant must claim an 

interest the protection of which may, as a practical matter, be 

impaired or impeded if the lawsuit proceeds without the applicant. 

Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 

1493 (9th Cir. 1995). The Ninth Circuit applies a four-part test 

to motions under Rule 24(a)(2): 

(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 

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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 applicant's interest must be inadequately 

protected by the parties to the action. 

Id. (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 

1993)). 

North Dakota alleges that the EPA relied on the consent 

decree to give it the authority to address regional haze 

requirements, based on the language described above in the notice 

of the proposed action in the Federal Register. However, North 

Dakota misinterprets this language. The notice in the Federal 

Register does not say that the EPA relied on the consent decree 

for authority to take action on a regional haze SIP or FIP. It 

says that the EPA was simultaneously exercising its separate 

authority on both regional haze and interstate transport 

requirements, for efficiency. Although this Court is required to 

“take all well-pleaded, nonconclusory allegations in the motion to 

intervene, the proposed complaint or answer in intervention, and 

declarations supporting the motion as true,” it is not required to 

do so when there is “sham, frivolity or other objections.” Sw.

Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 

2001). Because it is contradicted by the text of the notice 

published in the Federal Register, North Dakota’s allegation--that 

the EPA relied on the consent decree in the notice to assume the 

legal authority to promulgate a regional haze FIP--will not be 

regarded as true. 

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 The EPA challenges North Dakota’s motion for intervention as 

a matter of right on two grounds: (1) that the motion is untimely; 

and (2) that North Dakota does not have a legally protectable 

interest. 

The Ninth Circuit test for the timeliness of a motion to 

intervene considers “1) the stage of the proceedings at which an 

applicant seeks to intervene; 2) the prejudice to other parties; 

and 3) the reason for and length of any delay.” Empire Blue Cross 

and Blue Shield v. Janet Greeson's A Place for Us, Inc., 62 F.3d 

1217, 1219 (9th Cir. 1995). 

 North Dakota argues that its request is timely, even though 

the case was resolved and closed more than a year and a half ago, 

because it could not have known that its rights were not 

adequately protected earlier, in that “this is the first instance 

in this proceeding at which [the] EPA has interpreted its duties 

under the [consent decree] to include implementation of the 

Regional Haze provisions of the [Clean Air Act].” Reply, at 6. 

However, North Dakota has not made any credible allegations that 

the EPA interpreted its duties under the consent decree as 

anything other than a requirement to take action on the interstate 

transport plans by a certain date. 

“An applicant has a ‘significant protectable interest’ in an 

action if (1) it asserts an interest that is protected under some 

law, and (2) there is a ‘relationship’ between its legally 

protected interest and the plaintiff's claims.” Donnelly v. 

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Glickman, 159 F.3d 405, 409 (9th Cir. 1998). 

In its motion, North Dakota protests the content of the EPA’s 

proposed actions regarding the regional haze FIP and the 

interstate transport FIP and that the EPA issued both proposals 

together. However, the EPA’s authority to enter into any kind of 

FIP and the content thereof were never at issue in this case. The 

consent decree in this case did not create any duty or authority 

on the part of the EPA, other than to enforce the duty to comply 

with a particular timetable regarding interstate transport plans, 

and North Dakota is not protesting this schedule. Therefore, 

North Dakota has not asserted any protectable interest in this 

case. See, e.g., Our Children’s Earth Foundation v. EPA, 2006 

U.S. Dist. LEXIS 30581, at *7-8 (N.D. Cal.) (denying a motion to 

intervene to protest the substance of the ultimate EPA action 

where “[t]he substantive content of any new regulations, was not, 

however, a subject of this lawsuit, [and t]he only issue [was] 

whether the Administrator will review the rules and by when he 

will act on the findings of his review.”) (emphasis in original). 

Accordingly, North Dakota’s motion for intervention as a 

matter of right is DENIED. 

II. Permissive Intervention 

A court may, in its discretion, permit intervention under 

Rule 24(b)(1)(B) by anyone who “has a claim or defense that shares 

with the main action a common question of law or fact.” In 

exercising its discretion, a court should “consider whether the 

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intervention will unduly delay or prejudice the adjudication of 

the original parties' rights.” Fed. R. Civ. P. 24(b)(3). The 

requirements for permissive intervention are (1) the applicant 

must show independent grounds of subject matter jurisdiction; 

(2) the motion must be timely; and (3) the applicant’s claim or 

defense, and the main action, must have a question of law or a 

question of fact in common. San Jose Mercury News, Inc. v. United 

States Dist. Court-Northern Dist. of Cal., 187 F.3d 1096, 1100 

(9th Cir. 1999) (citing predecessor provision, Federal Rule of 

Civil Procedure 24(b)(2)). 

 North Dakota reiterates the same reasons for permissive 

intervention as it asserted for mandatory intervention, which this 

Court has found wanting. In its reply papers, North Dakota also 

raises a new argument: that it has “an independent claim regarding 

the enforcement of the terms” of the consent decree, which is 

proper to bring under this Court’s retained jurisdiction over that 

decree. However, North Dakota is not actually seeking to enforce 

the terms of the consent decree. North Dakota is not arguing that 

the EPA did not take action on the interstate transport SIP within 

the time periods mandated in the consent decree. 

Accordingly, North Dakota’s motion for permissive 

intervention is DENIED. 

III. Motion for an Order to Show Cause 

“The standard for finding a party in civil contempt is well 

settled: The moving party has the burden of showing by clear and 

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convincing evidence that the [non-moving party] violated a 

specific and definite order of the court.” FTC v. Affordable 

Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. 

City & County of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 

1992)). However, substantial compliance and acting on a good 

faith and reasonable interpretation of the court order can 

preclude sanctions. In re Dual-Deck Video Cassette Recorder 

Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). The decision 

to find a party in contempt is within the discretion of the 

district court. Jerry's Famous Deli, Inc. v. Papanicolaou, 383 

F.3d 998, 1004 (9th Cir. 2004). 

North Dakota has not demonstrated, and certainly not by clear 

and convincing evidence, that the EPA has violated this Court’s 

consent decree. North Dakota does not allege that the EPA failed 

to take action by the required date; North Dakota instead alleges 

that the EPA took other actions in addition to the single action 

required in the consent decree. Further, North Dakota presents no 

evidence that the EPA claimed that the consent decree authorized 

it to promulgate a regional haze FIP for North Dakota, other than 

North Dakota’s own allegations, which are undermined by the actual 

contents of the notice in the Federal Register as described above. 

Instead, the evidence presented shows that the EPA consistently 

cites to the Clean Air Act as providing authority for it to 

promulgate both the regional haze FIP and the interstate transport 

FIP. The EPA cites the consent decree only as providing a 

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deadline for action on the interstate transport FIP. The EPA made 

an administrative decision to address both together, and thus 

chose to address the regional haze FIP by the same date, as is 

within its right. Nothing in the consent decree prohibited the 

EPA from taking that action, or required it to do so. 

Accordingly, even if this Court had granted North Dakota 

leave to intervene, this Court would have denied North Dakota’s 

motion for an order to show cause. 

CONCLUSION 

 For the foregoing reasons, North Dakota’s motions to 

intervene and for an order to show cause are DENIED. (Docket Nos. 

43 and 46) 

IT IS SO ORDERED. 

Dated: CLAUDIA WILKEN 

United States District Judge 

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