IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

vs.

LISA JACKSON, 

ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION 

AGENCY,

Defendant.

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

 

BCCA APPEAL GROUP’S REPLY IN SUPPORT OF ITS MOTION TO INTERVENE 

The BCCA Appeal Group (“BCCAAG”) respectfully submits this reply in support of its 

motion to intervene pursuant to Federal Rule of Civil Procedure 24(a) and (b) (the “Motion”). 

INTRODUCTION

In its Opposition, Sierra Club argues that this is a Clean Air Act deadline case in which 

the plaintiff only asks that EPA make a determination that it is required to make by law. Sierra 

Club is wrong. This is not a deadline case, and the legal requirement to make the determination 

sought by Sierra Club does not exist.

In South Coast Air Quality Management District 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 EPA’s revocation of 

the 1-hour ozone standard and its elimination of the requirement that it determine whether an 

area met the 1-hour standard by its attainment date. Here, Sierra Club asks this Court to reverse 

South Coast by holding that EPA must determine whether an area has met the 1-hour standard by 

its attainment date.

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Sierra Club does not dispute, and therefore concedes, two of the four factors for 

intervention: (i) that if BCCAAG’s Motion is denied, it will impair BCCAAG’s ability to 

protect its interests, and (ii) that BCCAAG’s interests are not adequately represented by the 

existing parties. Therefore, the only Rule 24(a) factors in dispute are whether BCCAAG has 

standing and whether the Motion is timely. As to standing, Sierra Club does not dispute that 

BCCAAG would suffer an injury, and therefore would have standing to intervene, if BCCAAG’s 

reading of South Coast is correct. See Opp’n at 6–7. Sierra Club instead disputes BCCAAG’s 

reading of South Coast and argues that South Coast did not uphold EPA’s revocation of the 1-

hour ozone standard. Id. As a result, according to Sierra Club, the 1-hour standard remains the 

status quo and this is simply a “deadline suit.” Id. However, it is Sierra Club who misreads 

South Coast, as explained below.

 Further, Sierra Club contends that the imposition of Section 185 fees, which only apply 

to areas that failed to attain, is too speculative to qualify as an injury-in-fact because it has not 

yet been determined whether the Houston-Galveston-Brazoria, Texas (“HGB”) area met the 1-

hour standard by its attainment date. Id. at 8–9. Sierra Club’s position ignores the facts and is 

based on a misreading of the law. Sierra Club relies heavily on Center for Biological Diversity 

v. EPA, Civ. Action No. 10-985 (HHK), 2011 WL 1346965 (D.D.C. Apr. 11, 2011) (“CBD”) for 

the proposition that Section 185 fees are too speculative to constitute an injury-in-fact. See

Opp’n at 4–5. In CBD, however, the court was addressing a situation where the eventual 

outcome of the determination that EPA was asked to make was uncertain because EPA would 

have to make a subjective, qualitative assessment of whether certain emissions endanger public 

health or welfare. CBD, 2011 WL 1346965, at *4. Here, by contrast, EPA’s determination is 

purely quantitative (the application of a fixed mathematical formula to a predefined dataset), 

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eliminating the uncertainty that caused the CBD court to deny the would-be intervenors’ motion. 

Because Sierra Club only asks that EPA perform a basic calculation on an already known 

dataset, Sierra Club’s alleged uncertainty does not exist, as illustrated by the statements of the 

Texas Commission on Environmental Quality (“TCEQ”), the agency responsible for 

implementing CAA programs in Texas. TCEQ stated in an official agency publication that “the 

HGB one-hour ozone nonattainment area . . . failed to demonstrate attainment of the one-hour 

ozone standard by its attainment date.” See 34 Tex. Reg. 8644, 8646 (Dec. 4, 2009) (attached as 

Exhibit A). Therefore, the prospect of BCCAAG’s being subject to Section 185 fees as a result 

of a judgment in favor of Sierra Club in this case is sufficient to satisfy the injury requirement of 

Article III.

In addition, Sierra Club’s assertion that the Motion is untimely should be rejected out of 

hand. Sierra Club has failed to identify a single case where a motion to intervene was deemed 

untimely despite the fact that no motions practice or discovery had taken place. Moreover, 

Sierra Club’s allegations of prejudice are unfounded. Sierra Club would certainly be 

“prejudiced” by BCCAAG’s intervention, but only because BCCAAG will highlight for the 

Court that it lacks subject matter jurisdiction over this case. That is not the type of prejudice 

contemplated by Rule 24.

Finally, even if any questions remained about BCCAAG’s right to intervene, the Court 

should exercise its discretion and permit BCCAAG to intervene. Permissive intervention does 

not require BCCAAG to establish its standing, and the Motion, as well as BCCAAG’s proposed 

filings, demonstrate the important contribution that BCCAAG would make to this case. 

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I. SEVERAL REQUIREMENTS FOR INTERVENTION OF RIGHT ARE 

UNDISPUTED. 

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). Because BCCAAG seeks to intervene on behalf of its members, it must also show 

that: (i) the interests at stake here are germane to its purpose; (ii) participation of its individual 

members is not necessary; and (iii) its members would have standing in their own right. Hunt v. 

Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). 

In its Opposition, Sierra Club does not dispute that BCCAAG has satisfied the third and 

fourth factors of the Rule 24(a) test, nor does it contest that the first two factors of the 

associational standing test are met. Sierra Club only challenges BCCAAG’s standing and the 

timeliness of its Motion. And, with respect to standing, Sierra Club only seriously challenges 

BCCAAG’s alleged injury-in-fact.1

 

1

 Curiously, and without citing any authority, Sierra Club asserts that BCCAAG has 

failed to satisfy the redressibility prong of the standing analysis because, “even if Sierra Club lost 

on the merits of this case, the Court would not and could not order EPA not to act.” Opp’n at 9. 

Therefore, according to Sierra Club, “BCCA[G] is at risk of suffering its alleged injuries 

regardless of the outcome of this case.” Id. at 9–10. Sierra Club fundamentally misunderstands 

the redressability inquiry. The question is not whether it is conceivable for the identified injury

to occur in some other way—i.e., a party is not required to show that the requested relief is the 

only potential cause of the injury. The question is simply whether the requested relief, if granted, 

would cause the identified injury. Here, logic dictates that if BCCAAG can establish that Sierra 

Club’s requested relief would injure BCCAAG, then not awarding the requested relief would 

“redress” that injury, as has been held in many cases where intervention is sought in support of 

the defendant. See, e.g., CBD, 2011 WL 1346965, at *3 n.3 (“The Court assumes that if movants 

can establish the first two elements of standing, the redressability prong will also be satisfied; 

after all, if movants show that a judgment by this Court for plaintiffs will directly cause the 

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II. BCCAAG WILL SUFFER AN INJURY-IN-FACT IF SIERRA CLUB’S 

REQUESTED RELIEF IS GRANTED.

A. Sierra Club Mischaracterizes This Case As A Deadline Suit.

Sierra Club argues that this action is simply a deadline suit because all Sierra Club 

purportedly seeks is an order requiring EPA to perform its “mandatory duty,” i.e., determine 

whether the HGB area attained the 1-hour standard by its attainment date. As explained in the 

Motion and in BCCAAG’s Proposed Motion to Dismiss (attached as Exhibit B to the Motion), 

EPA has no duty to make the requested findings, and therefore, Sierra Club has not brought a 

deadline suit. Instead, Sierra Club has brought an action that seeks to rewrite EPA’s “Phase I” 

ozone implementation rule by having this Court reverse the D.C. Circuit. That result would 

injure BCCAAG by subjecting it to a different regulatory scheme and by depriving it of the 

opportunity to participate in the rulemaking process.

BCCAAG and Sierra Club appear to agree that the Phase I rule, validly promulgated in 

2004, conclusively established that EPA “is no longer obligated” to make the determinations 

sought by Sierra Club, 40 C.F.R. § 51.905(e)(2)(i)(A); 69 Fed. Reg. 23,857, 24,000 (Apr. 30, 

2004). See Opp’n at 6–8; Mot. at 3–4. The parties also appear to agree that under CAA section 

307(b), 42 U.S.C. § 7607(b), Sierra Club’s exclusive remedy to challenge the Phase I rule was to 

petition the D.C. Circuit for review, which it did in South Coast. See Opp’n at 7 (recognizing 

that “only the U.S. Court of Appeals for the District of Columbia has jurisdiction to” vacate the 

Phase I rule and citing CAA section 307(b)); Proposed BCCAAG Mot. to Dismiss at 10–12, 14. 

The parties, however, disagree over the results of that challenge. See Opp’n at 6–7; Proposed 

BCCAAG Mot. to Dismiss at 12–13. 

 

injury they identify, they will necessarily have shown that a judgment against plaintiffs would 

likewise redress that injury.”).

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Sierra Club asserts that South Coast vacated EPA’s revocation of the 1-hour standard. 

That assertion cannot be reconciled with the decision’s plain language. In South Coast, the court 

struck down exactly four parts of the Phase I rule: (1) New Source Review; (2) Penalties 

(Section 185 fees); (3) Contingency Plans; and (4) Motor Vehicle Emission Budgets. See 472 

F.3d at 900–05. The D.C. Circuit did not strike down any other portions of the Phase I rule, 

holding that the Phase I Rule was “vacated only to the extent that the court has sustained 

challenges to it.” 489 F.3d at 1248. Thus, South Coast did not vacate the provision of the Phase 

I rule that is relevant to the current lawsuit.

In disputing that conclusion, Sierra Club relies on the D.C. Circuit’s statement in South 

Coast that “EPA must determine its procedures after it has identified what findings must be 

made under the [CAA]” to argue that the D.C. Circuit vacated section 51.905(e)(2)(i)(A). See

Opp’n at 6–7. Sierra Club’s reliance is misplaced. In proper context, that quotation is only an 

aside to the D.C. Circuit’s decision to vacate a separate part of the Phase I rule:

Because these penalties [Section 185 fees] were designed to 

constrain ozone pollution, they are controls that section 172(e) [the 

CAA anti-backsliding provision] requires to be retained. While 

EPA maintains that it would be impractical to enforce these 

penalties because EPA will no longer make findings of attainment 

and conformity assessments as to the one hour standard, section 

172(e) does not condition its strict distaste for backsliding on 

EPA’s determinations of expediency; EPA must determine its 

procedures after it has identified what findings must be made 

under the Act. For these reasons, section 185 penalties must be 

enforced under the one-hour NAAQS.

472 F.3d at 903 (internal citations omitted; emphasis added). Clearly, the D.C. Circuit intended 

to vacate 40 C.F.R. § 51.905(e)(2)(ii), which provides that states are “no longer required to 

include in [their State Implementation Plans] provisions for CAA section 181(b)(4) and 185 

fees” upon revocation of the 1-hour ozone standard. The language cited by Sierra Club merely 

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 6 of 16
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evidences the court’s rejection of an argument made by EPA as to why section 51.905(e)(2)(ii) 

should not be vacated. It was not, and should not be interpreted as, a vacatur of the entire Phase 

I rule or of section 51.905(e)(2)(i)(A). 

Notably, EPA has acted to enforce Section 185 and implement anti-backsliding 

requirements without making findings of the type sought by Sierra Club. See 75 Fed. Reg. 232 

(Jan. 5, 2010) (initiating a process to impose federal sanctions on the State of California for 

failure to submit a Section 185 fee program to EPA); see also 76 Fed. Reg. 28,696 (May 18, 

2011) (proposed Section 185 fee Termination Determination for Sacramento Metro Area); 76 

Fed. Reg. 17,368 (Mar. 29, 2011) (proposed Section 185 fee Termination Determination for 

Baton Rouge). Those notices further support the conclusion that section 51.905(e)(2)(i)(A), 

which Sierra Club argues was vacated, was upheld by the D.C. Circuit.

Sierra Club’s opposition seeks to draw support for its reading of South Coast from 

several EPA notices in the Federal Register. However, those notices support BCCAGG’s 

position. 

The first, 74 Fed. Reg. 2936 (Jan. 16, 2009), contradicts Sierra Club’s position. In it, 

EPA explained:

Section 51.905(e), as promulgated in 2004, indicated that certain 1-

hour standard requirements are not part of the list of antibacksliding requirements. These include 1-hour NSR, section 185 

penalty fees, and 1-hour contingency measures for failure to attain 

or make reasonable progress toward attainment of the 1-hour 

NAAQS. The Court [in South Coast] vacated these exemption 

provisions, and accordingly EPA is proposing to delete these 

exemptions from the rule. Thus, this proposal would remove 

language related to the vacated provisions of the rule that provided 

exemptions from the requirements of nonattainment NSR and 

CAA section 185 penalty fees under the 1-hour standard in 

addition to the provision for contingency measures.

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Id. at 2941. The proposed rule would therefore have the effect of removing section 

51.905(e)(2)(ii), but retaining 51.905(e)(2)(i)(A), which is the section that Sierra Club argues 

was vacated in South Coast. Id. at 2944–45. Thus, 74 Fed. Reg. 2936 actually supports 

BCCAAG’s interpretation of South Coast. 

The second Federal Register notice cited by Sierra Club, 75 Fed. Reg. 6570 (Feb. 10, 

2010), is a proposed action by EPA to make a post-attainment date finding of 1-hour ozone 

attainment for the Baton Rouge area without “addressing the [Baton Rouge] area’s attainment 

status with respect to any other historical time period, or its status as of its 2005 attainment date.” 

See 75 Fed. Reg. at 6572. Again, that proposed action is inconsistent with Sierra Club’s view of 

the post-South Coast world.

The third, 75 Fed. Reg. 27,514 (May 17, 2010), is a proposal to redesignate the 

Beaumont-Port Arthur, Texas area to attainment under the 8-hour ozone standard. But that 

proposal does not address the area’s 1-hour ozone attainment status as of the attainment date, and 

simply provides no basis for concluding that South Coast vacated section 51.905(e)(2)(i). If 

Sierra Club’s reading of South Coast is correct, then EPA would have had to determine whether 

the Beaumont-Port Arthur area had attained by its attainment date. 

The fourth, 74 Fed. Reg. 15,864 (Apr. 8, 2009), omits any reference to a schedule on 

which EPA must make 1-hour ozone attainment findings and, ironically, was a finding of 

attainment that had the effect of preventing the Philadelphia-Wilmington-Trenton area from 

being subject to Section 185 fees, which according to Sierra Club are mandatory if an area does 

not attain the 1-hour standard by its attainment date. 

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B. If This Court Reinstates The 1-Hour Ozone Standard, It Will Injure 

BCCAAG.

Sierra Club argues that its requested relief will not injure BCCAAG because BCCAAG 

will not be denied the opportunity to comment on EPA’s findings as to whether the HGB area 

failed to attain the 1-hour ozone standard by its attainment date. Sierra Club misses the point due 

to its flawed reading of South Coast. 

The issue is whether EPA is required to make such a finding in the first place. Because 

the 1-hour ozone standard has been revoked, and Sierra Club is attempting to force EPA to 

reinstate the 1-hour standard without following the required administrative procedures, Sierra 

Club’s requested relief would injure BCCAAG by denying it the opportunity to comment on the 

reinstatement of the 1-hour standard. 

Accordingly, the Court should find that Sierra Club’s requested relief threatens 

BCCAAG with an injury-in-fact.

C. Sierra Club Ignores The Likelihood That BCCAAG Will Be Subject to 

Section 185 Fees. 

Sierra Club asserts that any injury to BCCAAG associated with Section 185 fees is too 

contingent on issues outside of this lawsuit to establish an injury-in-fact to BCCAAG. In support 

of this assertion, Sierra Club relies heavily on CBD. See Opp’n at 8–9. In CBD, various 

environmental organizations sued EPA to force the agency to determine whether greenhouse gas 

emissions from non-road vehicles and engines endanger public health or welfare. 2011 WL 

1346965, at *1–2. When airline industry associations—who undoubtedly would be affected by 

the actual emissions standards to be imposed on such engines—sought to intervene, the court 

considered whether they were threatened with an injury-in-fact by the environmental 

organizations’ petitions. Id. at *2. The court concluded that before the plaintiffs’ requested 

relief would “result in the economic harms identified by movants, several contingencies would 

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 9 of 16
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have to come about: EPA would have to make endangerment findings; those findings would 

have to be positive; EPA would have to initiate a rulemaking; that rulemaking would have to 

result in emissions standards that forced movants to spend money.” Id. at *4. Thus, CBD was 

about subjective, qualitiative findings that EPA would or would not make, the outcome and 

ultimate effect of which were subject to EPA’s discretion. Sierra Club contends that a similar 

series of contingencies would arise if Sierra Club prevails in this lawsuit. Sierra Club is 

incorrect.

First, a judgment in Sierra Club’s favor would obviously result in some finding by EPA 

on the HGB area’s 1-hour attainment status. That is exactly the result that Sierra Club seeks. 

Second, Sierra Club’s suggestion that it is an open question whether the HGB area 

attained or did not attain the 1-hour ozone standard is not supported by the facts. TCEQ has 

stated publicly that “the HGB [Houston] one-hour ozone nonattainment area . . . failed to 

demonstrate attainment of the one-hour ozone standard by its attainment date” and has estimated 

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

sources. See 34 Tex. Reg. at 8646, 8651.

2

 Based on this concern, the TCEQ prepared a 

Termination Determination request for the Houston area, which was submitted to EPA in 2010. 

See TCEQ, Request for Determination Regarding Termination of the One-Hour Ozone Section 

185 Fee Obligation.

3

 The findings of the TCEQ contradict Sierra Club’s assertion that nonattainment is a pure unknown.

 

2

 This Court can take judicial notice of register entries. See, e.g., American Farm Bureau 

v. EPA, 121 F. Supp. 2d 84, 106 (D.D.C. 2000) (taking judicial notice of Federal Register entries 

cited by EPA).

3

 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 

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 10 of 16
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Even without relying on the statements of the TCEQ, this Court can reject Sierra Club’s 

allegations of uncertainty as to whether EPA would find that HGB (or any other area at issue in 

this lawsuit) attained the 1-hour ozone standard by the attainment date. There is no mystery or 

room for discretion regarding the outcome of the finding sought by Sierra Club because it 

amounts to a mathematical calculation based on publicly available data. As explained in 

BCCAAG’s Proposed Motion to Dismiss, EPA relies on data in its publicly available “AQS” 

database to determine whether an area has attained the 1-hour ozone standard. See, e.g., 74 Fed. 

Reg. 63,993, 63,994 (Dec. 7, 2009); EPA, AirData, http://www.epa.gov/air/data/index.html (last 

accessed June 24, 2011). Using the publicly available AQS data for the HGB area, the Court (or 

Sierra Club, or anyone) could readily apply the “attainment” calculation formula to air 

monitoring data from HGB in the relevant time period to determine whether the area attained the 

1-hour ozone standard. See 40 C.F.R. § 50.9 & App. H (defining the 1-hour ozone standard). 

The answer is as simple as determining whether any air quality monitoring site listed in AQS had 

more than one expected “exceedance” per year, on average over a 3-year period, and the 

algebraic formula for finding this answer is explained in great detail in EPA’s regulations. See 

id. No matter who performs the calculation—EPA, Sierra Club, BCCAAG, the TCEQ, this 

Court, or a high school student—the answer will be the same. 

Sierra Club also asserts that there is a contingency associated with the imposition of 

Section 185 fees if EPA finds that an area such as HGB failed to attain. But this assertion 

contradicts Sierra Club’s own Complaint, where Sierra Club avers that major stationary sources 

(such as those owned and operated by BCCAAG’s members) are “required” to pay the penalty 

 

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

Nonattainment Area, May 14, 2010.”

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 11 of 16
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fees if EPA finds that an area, such as HGB, failed to attain. Compl. ¶¶ 39–40. It is unclear to 

what contingency Sierra Club could be referring if, as Sierra Club has alleged, the fees are 

“required.”4

Thus, the Court should find that the threat of Section 185 fees is a concrete injury-in-fact 

sufficient to support BCCAAG’s standing.

III. BCCAAG’S MOTION TO INTERVENE IS TIMELY.

Sierra Club suggests that the Motion is untimely because five months have elapsed since 

the Complaint was filed and because intervention “would significantly affect the parties’ ability

to follow through with [their tentative settlement] agreement and lead to unnecessary litigation 

and the use of the Court’s limited resources.” Opp’n at 10.

First, the actual timing of the Motion has not prejudiced any existing party. BCCAAG 

moved to intervene less than five months after the Complaint was filed: no discovery or motions 

practice has occurred. Thus, BCCAAG’s intervention would have the same effect now, as it 

would have had if it happened the day after Sierra Club filed its Complaint.

Second, the only purported prejudice that Sierra Club has identified relates to its 

settlement with EPA. Id. Presumably, Sierra Club will seek this Court’s approval of any 

settlement. That is, Sierra Club will ask this Court to continue to exercise jurisdiction over this 

case. However, as explained in BCCAAG’s proposed Motion to Dismiss, this Court lacks 

subject matter jurisdiction over this action. It is that lack of jurisdiction that could potentially

impair Sierra Club’s ability to secure this Court’s approval of a settlement, not BCCAAG’s 

presence as a party. Because this Court has an obligation to ensure that it has jurisdiction over 

 

4

 The Court may properly rely on allegations in Sierra Club’s complaint to establish 

BCCAAG’s standing. See Fund for Animals, 322 F.3d at 734 (relying in part on statements in 

the plaintiff’s complaint to establish an intervenor’s standing).

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 12 of 16
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this matter at all times, including via sua sponte consideration, the briefing that Sierra Club 

describes as “unnecessary litigation” could be quite necessary and helpful to the Court. See, e.g., 

Krug v. Roberts, Civil Action No. 10–02069 (ABJ), 2011 WL 2391958, at *1 (D.D.C. June 13, 

2011) (dismissing complaint sua sponte for lack of subject matter jurisdiction). If Sierra Club 

has properly invoked this Court’s jurisdiction, then it should have no concerns about BCCAAG’s 

intervention thwarting its proposed settlement. Further, because this case essentially turns on a 

single legal issue, one that may for the most part be resolved through the briefing at hand—

whether South Coast upheld or vacated EPA’s revocation of the 1-hour standard—BCCAAG’s 

intervention is unlikely to cause any meaningful delay in resolving this matter completely.

IV. BCCAAG MEETS THE REQUIREMENTS FOR PERMISSIVE

INTERVENTION.

Even assuming that BCCAAG cannot establish its right to intervene, BCCAAG requests 

that this Court exercise its discretion and permit BCCAAG to intervene pursuant to Rule 24(b): 

BCCAAG shares a defense with EPA and its involvement would significantly add to the just and 

equitable adjudication of this case. Notably, Sierra Club does not assert that BCCAAG must 

establish its standing in order for the Court to allow permissive intervention, but instead refers to 

the uncertainty in this Circuit regarding whether a showing of standing is required under Rule 

24(b). See Opp’n at 11. BCCAAG does not disagree that the law in the D.C. Circuit is 

unsettled on this issue. See In re Vitamins Antitrust Class Action, 215 F.3d 26, 31–32 (D.C. Cir. 

2000) (acknowledging “uncertainty over whether standing is necessary for permissive 

intervention”). However, because the weight of authority on this issue does not require a 

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 13 of 16
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proposed intervenor to establish standing under Rule 24(b), BCCAAG urges this Court to find 

that standing is not required for permissive intervention.5 

BCCAAG’s expertise on the issues involved, as demonstrated in the Motion and 

BCCAAG’s proposed filings, and its stated intent to test Sierra Club’s assertion that this Court 

has subject matter jurisdiction over this action, fully support permissive intervention. Indeed, the 

existing parties admit that they are in the process of a settlement despite the fact that the validity 

of Sierra Club’s claims has never been tested. Given the significant impact that any relief Sierra 

Club obtains in this action—whether through settlement or judgment—will have on interested 

private sector entities, those entities should have their voices heard in this action. 

Accordingly, the Court should also allow BCCAAG to intervene by permission.

CONCLUSION

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

 

5

See City of Herriman v. Bell, 590 F.3d 1176, 1183 (10th Cir. 2010) (“[O]ur case law 

supports the view that a prospective intervenor need not have its own standing to intervene under 

Rule 24(b)); Newby v. Enron Corp., 443 F.3d 416, 422 (5th Cir. 2006) (considering request to 

intervene under Rule 24(b) and explaining that “there is no Article III requirement that 

intervenors have standing in a pending case”); Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998) 

(“Key to our analysis is the Supreme Court's ruling that a party who lacks standing can 

nonetheless take part in a case as a permissive intervenor.”); Chiles v. Thornburgh, 865 F.2d 

1197, 1213 (11th Cir. 1989) (“We therefore hold that a party seeking to intervene need not 

demonstrate that he has standing in addition to meeting the requirements of Rule 24 as long as 

there exists a justiciable case and controversy between the parties already in the lawsuit”); 

United States Postal Service v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The existence of a 

case or controversy having been established as between the Postal Service and the Brennans, 

there was no need to impose the standing requirement upon the proposed intervenor”).

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Dated: June 30, 2011

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

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 15 of 16
CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2011, the foregoing reply in support of BCCAAG’s 

Motion to Intervene and all attachments were served via ECF on all counsel of record.

/s/ Richard P. Sobiecki

Richard P. Sobiecki

Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 16 of 16