**IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA**  SIERRA CLUB,

Plaintiff, vs. LISA JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11
- c v - 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 ca se, and the legal requirement to make the determination sought b y 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 E PA’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 b y its attainment date. Here, Sierra Club asks this Court to reverse South Coast

by holding that EPA must determi ne whether an area has met the 1
- hour standard b y its attainment date. Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 1 of 162

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 adequatel y represented b y the existing parties. Therefore, the onl y Rule 24(a) factors in dispute are whether BCCAAG has standing and whether the Motion is timely . As to standing, Sierra Club does not dis pute that BCCAAG would suffer an injury , and therefore would have standing to intervene, if BCCAAG’s reading of South Coast

is correct. SeeOpp’n at 6

– 7. Sierra Club instead disputes BCCAAG’s reading of South Coast

and argues that South Coast did not uph old 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 appl y to areas that failed to attain, is too speculative to qualify as an injury
- in
- fact because it has not ye t been determined whether the Houston
- Galveston
- Brazoria, Texa s (“HGB”) area met the 1
- hour standard b y 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 heavil y on Center for Biological Diversity v. EPA , Civ. Action No. 10
- 985 (HH K), 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 de termination 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 i s purely quantitative (the application of a fixed mathematical formula to a predefined dataset), Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 2 of 163

eliminating the uncertainty that caused the CBDcourt 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 b y its attainment date.” See 34 Tex. Reg. 8644, 8646 (Dec. 4, 2009) (attached as Exhibit A). Therefore, th e 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 unfound ed. Sierra Club would certainly be “prejudiced” b y 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 b y Rule 24. Finally , e ven 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 propos ed filings, demonstrate the important contribution that BCCAAG would make to this case. Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 3 of 164

**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 propert y 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 inter est may not be adequately represented b y 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 g ermane 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 an y authorit y, Sierra Club asserts that BCCAAG has failed to satisfy

the redressibility

prong of the standing analy sis because, “even if Sierra Club lost on the merits of this case, the Court would not and co uld 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

inqu iry. 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 onlypotential cause of the injury . The question is simply whether the requeste d 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 man y cases where intervention is sought in support of the defendant. See, e.g. , CBD , 2011 WL1346965, 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 b y this Court for plaintiffs will directly cause the Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 4 of 165

**II. BCCAAG WILL SUFFER A**  **N 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 purportedl y 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 ac tion 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 b y subjecting it to a different regulatory scheme and b y 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 b y Sierra Club, 40 C.F.R. § 51.905(e)(2)(i)(A); 69 Fed. Reg. 23,857, 24,000 (Apr. 30, 2004). SeeOpp’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. Circuitfor review, which it did in South Coast
. SeeOpp’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. SeeOpp’n at 6

– 7; Proposed BCCAAG Mot. to Dismiss at 12

– 13. injury they identify , they

will necessaril y have shown that a judgment against plaintiffs would likewise redress that injury .”). Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 5 of 166

Sierra Club asserts that South Coast vacated EPA’s revocation of the 1
- hour standard. That assertion cannot be reconcile d 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 9 00

– 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 onl y t o the extent that the court has sustained challenges to it.” 489 F.3d at 1248. Thus, South Coast did not vacate the prov ision 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 un der 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 separatepart of the P hase 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 enf orce these penalties because EPA will no longer make findings of attainment and conformity

a ssessments 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 determ ine its procedures after it has identified what findings must be made under the Act
. F or these reasons, section 185 penalties must be enforced under the one
- hour NAAQS. 472 F.3d at 903 (internal citations omitted; emphasis added). Clearl y, the D.C. Circ uit 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 l anguage cited b y Sierra Club merel y Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 6 of 167

evidences the court’s rejection of an argument made by EPA as to why

section 51.905(e)(2)(ii) should not be vacated. Itwas not, and should not be interpreted as, a vacatur of the entire Phase I rule or of section 51.90 5(e)(2)(i)(A). Notably , EPA has acted to enforce Section 185 and implement anti
- backsliding requirements without making findings of the t ype sought b y 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 Sect ion 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 anti
backsliding requirements. T hese include 1
- hour NSR, section 185 penalty f ees, and 1
- hour contingency m easures for failure to attain or make reasonabl e progress toward attainment of the 1
- hour NAAQS. T he Court [in South Coast] vacated these exemption provisions, and accordingl y EPA is proposing to delete these exemptions from the rule. T hus, this proposal would remove language related to the vacated p rovisions of the rule that provided exemptions from the requirements of nonattainment NSR and CAA section 185 penalty f ees under the 1
- hour standard in addition to the provision for contingency measures. Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 7 of 168

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 b y 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] are a’s attainment status with respect to an y 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 dat e. 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
- Trent on 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 b y its attainment date. Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 8 of 169

**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 with out following the required administrative procedures, Sierra Club’s requested relief would injure BCCAAG b y denying it the opportunity to comment on the reinstatement of the 1
- hour standard. Accordingl y, 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 heavil y on CBD
. SeeOpp’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 b y 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, sev eral contingencies would Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 9 of 1610

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 t o spend money .” Id . at *4. Thus, CBDwas 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 wou ld 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 see ks. 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 theTCEQ contradict Sierra Club’s assertion that non
attainment is a pure unknown.

2 This Court can take judicial notice of r egister 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 cop y of TCEQ’s Termination Determination request is available at http://www.tceq.texas.go v/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 1611

Even without rel yi ng 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 i ssue in this lawsuit) attained the 1
- hour ozone standard b y 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 avail able 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 publicl y available AQS data for the HGB area, the Court (or Sierra Club, or an yone) could readily appl y 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 ye ar, on average over a 3
- ye ar 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 th is assertion contradicts Sierra Club’s own Complaint, where Sierra Club avers that major stationary sources (such as those owned and operated b y BCCAAG’s members) are “required” to pay the penalt y

Termination Determination for Houston
- Galveston
- Brazoria (HGB) One
- Hour Ozone Standard Nonatt ainment Area, May 14, 2010.” Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 11 of 1612

fees if EPA finds that an area, such as HGB, failed to atta in. 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 sup port BCCAAG’s standing. **III. BCCAAG’S MOTION TO I**  **NTERVENE 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 fol low 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 part y. BCCAAG moved to interveneless 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, theonly

purported prejudice that Sierra Club has identified relates to its settlement with EPA. Id . Presumably , Sierra Club will seek this Court’s approval of an y settlement. That is, Sierra Club will ask this Court to continue to exercise jurisdiction ov er 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 approvalof a settlement, not BCCAAG’s presence as a part y. Because this Court has an obligation to ensure that it has jurisdiction over

4 The Court may

properl y rely

on allegations in Sierra Club’s complaint to establish BCCAAG’s standing. See Fund for Animals , 322 F.3d at 734 (rel yi ng in part on statements in the plaintiff’s complaint to establish an interven or’s standing). Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 12 of 1613

this matter at all times, including via sua sponteconsideration, the briefing that Sierra Club describes as “unnecessary liti gation” could be quite necessary and helpful to the Court. See, e.g. , Krug v. Roberts , Civil Action No. 10

– 02069 (ABJ), 2011 WL2391958, at *1 (D.D.C. June 13, 2011) (dismissing complaint sua spontefor lack of subject matter jurisdiction). If Sierra Club has properl y 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 resol ved 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 an y m eaningful delay in resolving this matter completel y. **IV. BCCAAG MEETS THE REQ**  **UIREMENTS FOR PERMIS SIVE**  **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 sign ificantly add to the just and equitable adjudication of this case. Notabl y, 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 uncertaint y in this Circuit regarding whether a showing of standing is required under Rule 24(b). SeeOpp’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 “uncertaint y 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 1614

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 validit y of Sierra Club’s claims has never been tested. Given the signific ant 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. Accordingl y, the Court should also allow BC CAAG to intervene b y 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 anal ys is is the Suprem e Court's ruling that a part y 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 h e has standing in addition to meeting the requirements of Rule 24 as long as there exists a justiciable case and controvers y between the parties already i n the lawsuit”); United States Postal Service v. Brennan , 579 F.2d 188, 190 (2d Cir. 1978) (“The exist ence of a case or controvers y having been established as between the Postal Service and the Brennans, there was no need to impose the standing requirement upon the proposed intervenor”). Case 1:11-cv-00100-JDB Document 13 Filed 06/30/11 Page 14 of 1615

Dated: June 30, 2011 Respectfully submitted, /s/ Richard P. Sobiecki Richard P. Sobiecki (D.C. Bar # 500163) Baker Bott s 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 L ouisiana Houston, Texas 77002 (713) 229
- 1133 zachary .craft@bakerbotts.com Attorneys for BCC

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

I hereb y certify

that on June 30, 2011, the foregoingreply 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