Memorandum in Support of Motion to Intervene 

70061495.1 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705

suzanne.lacampagne@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: (503) 224-5858 

Facsimile: (503) 224-0155 

Roger R. Martella, Jr. 

rmartella@sidley.com 

Quin M. Sorenson 

qsorenson@sidley.com 

Benjamin E. Tannen 

btannen@sidley.com 

(to be specially admitted)

SIDLEY AUSTIN LLP 

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

Facsimile: (202) 736-8711 

Attorneys for Proposed Intervenor-Defendants 

 The National Association of Manufacturers, 

 American Fuel & Petrochemical Manufacturers, 

and American Petroleum Institute 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

KELSEY CASCADIA ROSE JULIANA, et 

al., 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

Case No. 6:15-cv-01517-TC 

MEMORANDUM IN SUPPORT OF 

MOTION TO INTERVENE 

 

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Page i Table of Contents 

70061495.1 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................................................... ii 

INTRODUCTION ...........................................................................................................................1 

SUMMARY OF CASE....................................................................................................................4 

ARGUMENT ...................................................................................................................................8 

I. The Proposed Intervenor-Defendants Are Entitled To Intervene As Of Right Pursuant To 

Federal Rule Of Civil Procedure 24(a) ................................................................................8 

A. This Motion to Intervene Is Timely .......................................................................10 

B. The Proposed Intervenor-Defendants’ Members Have Significantly 

Protectable Interests That Would Be Affected By Plaintiffs’ Suit ........................11 

C. Disposition Of This Case May Impair or Impede Proposed IntervenorDefendants’ Ability to Protect Their Interests And The Interests Of Their 

Members ................................................................................................................14 

D. The Government Cannot Adequately Represent Proposed IntervenorDefendants’ Interests .............................................................................................16 

II. In the Alternative, The Proposed Intervenor-Defendants Should Be Granted Leave 

For Permissive Intervention Under Federal Rule of Civil Procedure 24(b) ......................17 

III. Conclusion .........................................................................................................................19 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Alaska v. Suburban Propane Gas Corp., 

123 F.3d 1317 (9th Cir. 1997) .................................................................................................10 

Alec L. v. Jackson, 

863 F. Supp. 2d 11 (D.D.C. 2012) .........................................................................................2, 4 

Alec L. ex rel. Loorz v. McCarthy, 

561 F. App’x 7 (D.C. Cir. 2014) ............................................................................................2, 4 

In re Cal. Micro Devices Sec. Litig., 

168 F.R.D. 276 (N.D. Cal. 1996) .......................................................................................11, 18 

Conservation Law Found. of New England v. Mosbacher, 

966 F.2d 39 (1st Cir. 1992) ......................................................................................................13 

Conservation Nw. v. U.S. Forest Serv., 

No. CV-05-0220, 2005 WL 1806364 (E.D. Wash. July 28, 2005) .........................................19 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986) ...........................................................................................16, 17

Forest Conservation Council v. U.S. Forest Serv., 

66 F.3d 1489 (9th Cir. 1995), abrogated on other grounds by Wilderness 

Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) ............................................9, 14, 17 

Fresno Cty. v. Andrus, 

622 F.2d 436 (9th Cir. 1980) .................................................................................10, 15, 16, 17 

Fund for Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003) .....................................................................................14, 15, 17 

Hunt v. Washington State Apple Advert. Comm’n, 

432 U.S. 333 (1977) ...................................................................................................................9 

Idaho Farm Bureau Fed’n v. Babbitt, 

58 F.3d 1392 (9th Cir. 1995) .............................................................................................10, 11 

Kootenai Tribe of Idaho v. Veneman, 

313 F.3d 1094 (9th Cir. 2002), abrogated on other grounds by Wilderness 

Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) ........................................................18 

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Landgraf v. USI Film Products, 

511 U.S. 244 (1994) .................................................................................................................12 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .............................................................................................................9, 15 

Military Toxics Project v. EPA, 

146 F.3d 948 (D.C. Cir. 1998) ...................................................................................................9 

Natural Res. Def. Council v. Costle, 

561 F.2d 904 (D.C. Cir. 1977) .................................................................................................17 

Nw. Forest Res. Council v. Glickman, 

82 F.3d 825 (9th Cir. 1996) .....................................................................................................18 

PPL Montana, LLC v. Montana, 

132 S. Ct. 1215 (2012) ...............................................................................................................4 

Perry v. Proposition 8 Official Proponents, 

587 F.3d 947 (9th Cir. 2009) .....................................................................................................9 

Portland Audubon Soc’y v. Hodel, 

866 F.2d 302 (9th Cir. 1989), abrogated on other grounds by Wilderness 

Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) ........................................................9 

Sagebrush Rebellion, Inc. v. Watt, 

713 F.2d 525 (9th Cir. 1983) .............................................................................................11, 14 

Sierra Club v. Espy, 

18 F.3d 1202 (5th Cir. 1994) ...................................................................................................17 

Sierra Club v. U.S. E.P.A., 

995 F.2d 1478 (9th Cir. 1993), abrogated on other grounds by Wilderness 

Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) ......................................................12 

Sw. Ctr. for Biological Diversity v. Berg, 

268 F.3d 810 (9th Cir. 2001) ...................................................................................................11 

Trbovich v. United Mine Workers of America, 

404 U.S. 528 (1972) .................................................................................................................16 

UAW, Local 283 v. Scofield, 

382 U.S. 205 (1965) .................................................................................................................18 

United States v. Alisal Water Corp., 

370 F.3d 915 (9th Cir. 2004) ...................................................................................................12 

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United States v. City of Los Angeles, 

288 F.3d 391 (9th Cir. 2002) .........................................................................................9, 12, 13

United States v. Oregon, 

913 F.2d 576 (9th Cir. 1990) ...................................................................................................10 

Wilderness Soc’y v. U.S. Forest Serv., 

630 F.3d 1173 (9th Cir. 2011) ...........................................................................9, 10, 11, 12, 18 

Statutes 

5 U.S.C. §§ 500 et seq....................................................................................................................13 

Other Authorities 

Fed. R. Civ. P. 24 .................................................................................................................8, 14, 18 

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INTRODUCTION 

The National Association of Manufacturers (NAM), American Fuel & Petrochemical 

Manufacturers (AFPM), and American Petroleum Institute (API) hereby move to intervene in 

this action filed by Earth Guardians, by a group of young adults and children in their individual 

capacities, and by “future generations” (collectively Plaintiffs). The NAM is the nation’s largest 

industrial trade association representing the manufacturing sector of the United States economy. 

AFPM is a national trade association whose members include virtually all United States refiners 

and petrochemical manufacturers. API is a national trade association whose members include 

over 625 oil and natural gas companies representing all facets of the oil and natural gas industry 

and who collectively provide most of the nation’s energy. 

Through this extraordinary suit, Plaintiffs seek to preempt the federal legislative and 

regulatory processes through which social, environmental, economic, and national security 

policies are established under our Constitution, and instead use the federal judiciary to compel 

massive societal changes that Plaintiffs believe are necessary to address climate change. Indeed, 

Plaintiffs have asked this Court to issue an injunction forcing many federal agencies 

(Defendants) to develop an “enforceable national remedial plan to phase out fossil fuel 

emissions” at a rate that will ensure “a near-term peak in CO2 emissions and a global reduction 

in CO2 emissions of at least 6% per year. . . .” See Juliana v. United States, First Amended 

Complaint for Declaratory and Injunctive Relief at 80, 94 (Doc. 7). Among other goals, 

Plaintiffs seek to completely eliminate the use of conventional fossil fuels in the United States. 

Doc. 7 at 94. 

This suit is not the first such case involving these claims—in 2011, similar plaintiffs, 

represented by the same counsel, filed a case involving these claims against several of the same 

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defendants. In that case, Alec L. v. Jackson, the district court dismissed the plaintiffs’ claims 

with prejudice. 863 F. Supp. 2d 11 (D.D.C. 2012). The D.C. Circuit subsequently affirmed the 

dismissal. Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7 (D.C. Cir. 2014). The Supreme 

Court later denied a petition for writ of certiorari, without written order, on December 8, 2014. 

Alec. L. v. McCarthy, No. 14-405 (U.S.). The complaint in this case, seeking the same relief as 

the complaint in Alec L., was filed less than a year later. 

The NAM represents small and large manufacturers in every industrial sector and in all 

50 states. Moutray Decl. ¶ 8. The NAM includes more than 14,000 members—which include 

leading members of the coal, oil, and natural gas sectors, petroleum refiners, and petrochemical 

producers, as well as thousands of manufacturing companies that are heavily reliant on the 

availability of reasonably-priced energy, and which themselves emit greenhouse gases (GHGs), 

including carbon dioxide (CO2). Id. ¶ 10. AFPM includes over 400 refiners and petrochemical 

manufacturers as members, all of whom rely on conventional energy sources to supply 

consumers with a wide variety of products and services used daily in homes and businesses. 

Friedman Decl. ¶ 9. API’s members are leaders of the oil and gas industry, supporting over 9.8 

million jobs and 8 percent of the U.S. economy through their work to advance conventional and 

other forms of energy. Feldman Decl. ¶ 11. All three Proposed Intervenor-Defendants seek to 

intervene in this case to ensure that the abrupt and extraordinary policy mandates that Plaintiffs 

ask this Court to direct are not imposed on their members and the entire U.S. economy through 

this case. 

If Plaintiffs succeed in this Court ordering the elimination or massive reduction of U.S. 

conventional fuel consumption and manufacturing processes that emit GHGs beyond existing 

federal and other regulations, the members of each of the Proposed Intervenor-Defendants will 

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be harmed. First, the NAM’s members that directly produce or refine conventional fuels—or 

make the tools and equipment to do so—will be directly affected. Moutray Decl. ¶ 17. Likewise, 

a sudden and significant reduction in allowable GHG emissions would cause a significant 

negative effect for many of API’s members by constraining the sale of the product they have 

specialized in developing and selling. Feldman Decl. ¶ 14. Moreover, Plaintiffs’ call to phase 

out fossil fuels is a direct threat to AFPM’s members’ businesses. Friedman Decl. ¶ 16. Second, 

the NAM’s members that power their facilities with conventional fuels or which directly emit 

GHGs as part of their manufacturing processes may be forced to invest in massive changes to 

their manufacturing infrastructure or to abandon such infrastructure. Moutray Decl. ¶ 18. 

Similarly, AFPM’s members would be harmed by a limitation on GHG emissions, due to an 

increase in the cost of producing transportation fuels, petrochemicals, and other products 

manufactured by AFPM members. Friedman Decl. ¶ 17. The refining and petrochemical 

industries are trade exposed, energy intensive manufacturers that depend upon the availability of 

reasonably priced and reliable energy sources. Id. ¶¶ 10, 17. Finally, the dramatic reductions in 

U.S. GHG emissions that Plaintiffs seek could increase the production and transportation costs 

for all of the NAM’s members, decreasing their global competitiveness and driving jobs and 

businesses abroad, particularly to locations where GHG emissions could continue unabated. 

Moutray Decl. ¶¶ 19-24. 

Additionally, Plaintiffs seek this unprecedented restructuring of the economy through an 

injunction by this Court without any involvement by many affected stakeholders, such as the 

members of Proposed Intervenor-Defendants. Finally, the Proposed Intervenor-Defendants’ 

members are already subject to a multitude of federal regulations under the Clean Air Act (CAA) 

and other statutes addressing air emissions, including a number that focus squarely on GHG 

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emissions. Moutray Decl. ¶ 8; Friedman Decl. ¶ 8; Feldman Decl. ¶ 8. Thus, if Plaintiffs’ 

requested relief is granted and new GHG rules are rushed out, the Proposed IntervenorDefendants’ members may face duplicative, even conflicting regulations. For all of these 

reasons, it is critical that they have the opportunity to intervene. 

SUMMARY OF CASE 

On September 10, 2015, Plaintiffs filed an amended complaint in the case, claiming that 

the Defendants violated their alleged duties as trustees of the natural resources of the United 

States by allowing global GHG levels to increase, as well as Plaintiffs’ purported Fifth 

Amendment Due Process and Equal Protection rights and Ninth Amendment un-enumerated 

rights. Doc. 7 at 84-92. These claims are similar to those made in the Alec L. case in which the 

Court concluded, in line with the Supreme Court’s holding in PPL Montana, LLC v. Montana, 

132 S. Ct. 1215 (2012), that a “public trust” claim does not implicate a “federal question” within 

its jurisdiction under 28 U.S.C. § 1331. 863 F. Supp. 2d at 15. As noted above, the D.C. Circuit 

affirmed that decision and the district court’s rationale, also citing PPL Montana. Alec L. ex rel. 

Loorz, 561 F. App’x at 7-8. The amended complaint in this case asserts that the President of the 

United States and numerous other federal officials and agencies—including the Departments of 

Agriculture, Commerce, Defense, Energy, Interior, State, and the Environmental Protection 

Agency and Office of Management and Budget—have “abrogated [their] duty to preserve and 

protect the atmosphere” by “authorizing, permitting, and incentivizing fossil fuel production, 

consumption, transportation, and combustion” and “[thereby] causing the atmospheric [carbon 

dioxide] concentration to increase.” Doc. 7 ¶¶ 5, 119, 130. 

The amended complaint seeks as relief an order directing Defendants to “prepare and 

implement an enforceable national remedial plan to phase out fossil fuel emissions and draw 

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down excess atmospheric [carbon dioxide]” and “to restore Earth’s energy balance.” Id. at 5, 94. 

This “plan” would “swiftly phase out CO2 emissions” in order to “ensure that atmospheric CO2

is no more concentrated than 350 ppm by 2100. . . .” Id. ¶ 12. To achieve that goal, the plan and 

other measures for which the Plaintiffs are calling would ensure “a near-term peak in CO2

emissions and a global reduction in CO2 emissions of at least 6% per year. . . .” Id. ¶ 258. The 

plan—apparently not subject to congressional command or oversight—would be ignorant of 

existing statutes and legislative directives and would be issued without allowing for Proposed 

Intervenor-Defendants to provide meaningful public input on issues of critical importance to 

their thousands of members. 

Interests of Proposed Intervenor-Defendants 

The outcome of this case has direct and profound implications for each of the Proposed 

Intervenor-Defendants—the NAM, AFPM, and API—and their members. 

 The NAM 

The NAM is the nation’s largest industrial trade association, and its members may be 

directly and severely impacted by the outcome of this litigation. The near-term capping of GHG 

emissions and annual 6% reductions in CO2 emissions that Plaintiffs are seeking would 

significantly harm the NAM’s members that directly produce, refine, and use conventional fuels. 

Moutray Decl. ¶ 17. The NAM’s members include many of the major oil, coal and natural gas 

producers, petroleum refiners, and petrochemical producers, as well as manufacturing companies 

that make the tools and components critical to such industries. Id. Obviously, near-term 

reductions—and eventual elimination—of conventional fuel use is a central business concern for 

these members of the NAM. Id. In addition, many of the NAM’s members rely on conventional 

fuels to power their manufacturing processes and move their goods, and have significantly 

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invested in the infrastructure necessary to effectively and efficiently utilize, transport, and 

combust particular conventional fuels. Further, many companies directly emit GHGs either 

through energy combustion or through manufacturing processes themselves. Id. ¶ 18. The 

elimination of conventional fuels would require these NAM members—at a minimum—to reengineer their manufacturing processes and invest substantial capital in converting their facilities 

and fleets to new sources of power, assuming such power is available within any practical or cost 

effective constraint. Id.

The unprecedented GHG reductions that Plaintiffs are seeking would also harm the U.S. 

manufacturing sector more broadly by driving up input costs for manufacturers. Id. ¶ 19. The 

costs incurred in other sectors of the economy, such as the utility sector, from new GHG 

regulations will be transferred to the manufacturing companies, regardless of whether they are 

emitters of GHGs, through higher electricity costs. Id. These higher costs, which are outside the 

control of manufacturers, will exacerbate a global competitive disadvantage that is already a 

significant challenge for manufacturers operating in the United States. Id. GHG regulations will 

add to the structural non-production costs on U.S. manufacturers that will further reduce their 

global competitiveness and market share both domestically as well as in other economies. Id. ¶¶ 

19-24. 

AFPM

AFPM is a national trade association that represents corporations that own and operate 

over 95 percent of the United States’ domestic petroleum refining capacity and virtually all of 

our nation’s petrochemical production capacity. Friedman Decl. ¶ 7. AFPM members are large 

energy consumers who would be impacted directly by the outcome of this litigation. AFPM 

member companies manufacture gasoline, diesel fuel, home heating oil, jet fuel, asphalt, and the 

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petrochemicals that serve as “building blocks” in thousands of products used every day by 

consumers and businesses, including plastics, clothing, medicine and computers. Id.

API

API is the national trade association for all elements of the oil and natural gas industry, 

and thus the outcome of this litigation will have a significant and direct impact on its members. 

API’s more than 625 members include large integrated companies, as well as exploration and 

production, refining, marketing, pipeline, and marine businesses, and service and supply firms, 

who, collectively, provide most of the nation’s energy. Feldman Decl. ¶ 10. API’s members 

explore for, produce, transport, refine, and sell oil, natural gas, and other fossil fuels, the 

combustion of which releases CO2 into the atmosphere. Id. API’s members support 9.8 million 

U.S. jobs and 8 percent of the U.S. economy. Id. ¶ 11. America’s oil and natural gas industry 

supplies $85 million every day ($30 billion per year) to the U.S. Treasury in the form of income 

taxes, rents, royalties, and other fees, and the financial returns from oil and natural gas company 

stocks support college and university endowments and public and private pension plans. Id. ¶¶ 

11-12. The unprecedented GHG reductions which Plaintiffs seek would have a significant 

negative effect on many of API’s members, which would likewise harm the economy more 

broadly. Id. ¶¶ 11-12, 14. 

Thus, the members of the Proposed Intervenor-Defendants have significant economic, 

legal, and policy interests in this lawsuit, as a ruling in Plaintiffs’ favor could result in a rapid, 

economy-wide shift in the energy sources relied upon by our nation, leading to a dramatically 

increased burden on the industry at a time when it can least afford such stress. In the face of 

such a result, the NAM’s members would likely have to significantly change, if not entirely 

abandon, their manufacturing and business practices. Moutray Decl. ¶¶ 17-19. API’s members 

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will suffer significant economic harm. Feldman Decl. ¶ 14. Re-aligning the entire energy mix of 

our country and potentially eliminating all conventional fuels will dramatically increase the cost 

of manufacturing, making the United States far less competitive and driving domestic 

manufacturing abroad. Moutray Decl. ¶¶ 19-24. The Plaintiffs’ calls to reduce GHG emissions 

would adversely impact trade exposed, energy intensive manufacturers such as AFPM’s 

members, and the proposed elimination of conventional fuels strikes directly at the primary 

business of AFPM’s refinery members. Friedman Decl. ¶¶ 15-17. 

Proposed Intervenor-Defendants’ members’ interests are particularly likely to be harmed 

because Plaintiffs’ requested remedy apparently provides no opportunity for public input before 

the court would issue an injunction to compel the executive agencies to act. Further, barring 

intervention by the NAM, AFPM, and API, this Court will not have the opportunity to hear from 

the companies most impacted by Plaintiffs’ requested remedy, a remedy that has high likelihood 

of duplicating and/or conflicting with existing environmental regulations. The Proposed 

Intervenor-Defendants therefore seek to intervene in this case to oppose Plaintiffs’ efforts to 

reshape the economy as they see fit. For the reasons stated below, this Court should grant the 

Proposed Intervenor-Defendants’ motion to intervene. 

ARGUMENT 

I. The Proposed Intervenor-Defendants Are Entitled To Intervene As Of Right 

Pursuant To Federal Rule Of Civil Procedure 24(a). 

Federal Rule of Civil Procedure 24(a) states in relevant part: 

On timely motion, the court must permit anyone to intervene 

who...(2) claims an interest relating to the property or transaction 

that is the subject of the action, and is so situated that disposing of 

the action may as a practical matter impair or impede the movant’s 

ability to protect its interest, unless existing parties adequately 

represent that interest. 

 The Ninth Circuit applies a four part test for determining if an applicant has a right to 

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intervene under Rule 24(a)(2). These four factors include: “(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 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 represented by the parties to the 

action.” Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (citation 

omitted).1 The Ninth Circuit follows “‘practical and equitable considerations’ and construe[s] 

the Rule ‘broadly in favor of proposed intervenors.’” Id. at 1179 (citations omitted). There is a 

“‘liberal policy in favor of intervention [which] serves both efficient resolution of issues and 

broadened access to the courts.’” United States v. City of Los Angeles, 288 F.3d 391, 397-98 (9th 

Cir. 2002) (citations omitted). The purpose of this liberal interpretation is to involve “‘as many 

apparently concerned persons as is compatible with efficiency and due process.’” Forest 

Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995), abrogated on 

 

1

 A movant is not required to satisfy the requirements for Article III standing when it satisfies the 

requirements for intervention as of right under Rule 24(a). See Perry v. Proposition 8 Official 

Proponents, 587 F.3d 947, 950 n.2 (9th Cir. 2009); Portland Audubon Soc’y v. Hodel, 866 F.2d 

302, 308 n. 1 (9th Cir. 1989), abrogated on other grounds by Wilderness Soc’y v. U.S. Forest 

Serv., 630 F.3d 1173 (9th Cir. 2011). Nonetheless, the Proposed Intervenor-Defendants meet 

Article III standing requirements because their members would plainly be affected if Plaintiffs 

were to obtain the relief they seek, and the individual participation of their members in the case 

is not required. See Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998) (finding 

trade association had standing to intervene in challenge of EPA regulation where some of its 

members were subject to challenged regulation). The interests alleged as grounds for 

intervention are sufficient to demonstrate that the NAM, AFPM, and API satisfy the test of 

constitutional standing and associational standing on behalf of their members. Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (providing three-prong test for standing 

generally); Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977) 

(providing three-prong test for associational standing). As discussed above and in the attached 

Moutray, Feldman, and Friedman declarations, the Proposed Intervenor-Defendants’ members 

face potential injuries that would provide them with their own right to sue, those injuries are 

related to their organizational purposes, and the nature of the claim and the relief requested is not 

such that participation of their members in the lawsuit is required. 

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other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); Fresno 

Cty. v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980) (citations omitted). The Proposed IntervenorDefendants satisfy each prong of this test and therefore should be permitted to intervene as of 

right.2

 

A. This Motion to Intervene Is Timely. 

Timeliness is evaluated based on: (i) the stage of the proceedings; (ii) the prejudice to the 

other parties if intervention were granted; and (iii) the reasons for and length of delay, if any, in 

seeking intervention. See, e.g., Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1319 

(9th Cir. 1997); United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990). A motion to 

intervene is made at a sufficiently early stage of the proceedings when it occurs “before any 

hearings or rulings on substantive matters.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 

1397 (9th Cir. 1995) (allowing environmental groups to intervene four months after the 

complaint was filed, even though plaintiff had already moved for a preliminary injunction). 

This case is clearly timely under these factors. 

This case is still in its earliest phases. The Proposed Intervenor-Defendants are filing 

their motion to intervene approximately three months after the Plaintiffs filed their initial 

complaint and approximately two months after they filed their First Amended Complaint. No 

substantive hearings have occurred yet, and the Court has not issued any substantive rulings. 

Furthermore, because the Proposed Intervenor-Defendants propose to comply with forthcoming 

scheduling orders and will endeavor to avoid duplication of issues with the other parties, there is 

 

2

 Pursuant to Rule 24(c)’s requirement that an applicant for intervention accompany its motion 

with a “pleading that sets out the claim or defense for which intervention is sought,” the 

Proposed Intervenor-Defendants are also filing today an accompanying Motion to Dismiss the 

Complaint under Fed. R. Civ. P. 12(b)(1), (6). 

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no danger of material prejudice to Plaintiffs or to Defendants. In short, under any test of 

timeliness, this Motion satisfies this provision of Rule 24(a)(2). See Idaho Farm Bureau Fed’n, 

58 F.3d at 1397; In re Cal. Micro Devices Sec. Litig., 168 F.R.D. 276, 277 (N.D. Cal. 1996) 

(finding timely a motion for permissive intervention filed at pleading stage). 

B. The Proposed Intervenor-Defendants’ Members Have Significantly 

Protectable Interests That Would Be Affected By Plaintiffs’ Suit. 

The sufficiency of an intervenor’s legally protectable interest “‘is a practical, threshold 

inquiry [and n]o specific legal or equitable interest need be established.’” Sw. Ctr. for Biological 

Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001) (citing Greene v. United States, 996 F.2d 

973, 976 (9th Cir. 1993)). “‘[I]t is generally enough that the interest is protectable under some 

law, and that there is a relationship between the legally protected interest and the claims at 

issue.’” Wilderness Soc’y, 630 F.3d at 1176 (citations omitted); see also Sagebrush Rebellion, 

Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983) (intervenor’s interest need not be protected by 

statute put at issue by complaint so long as it is protected by law and relates to claim). A legally 

protectable interest could be an “existing legal right, contract, or permit[] relating to” the subject 

of the litigation. Sw. Ctr. for Biological Diversity, 268 F.3d at 819. This requirement is readily 

satisfied here.

The relief Plaintiffs seek—unprecedented, abrupt and near-term restrictions on GHG 

emissions and the virtual elimination of conventional fuels—will plainly affect the legally 

protected interests of Proposed Intervenor-Defendants’ members. For example, such relief 

would adversely impact and may even eliminate the very businesses of those members of 

Proposed Intervenor-Defendants that are engaged in the production of such fuels and 

manufacturing to support the energy industry, Moutray Decl. ¶ 17; Friedman Decl. ¶¶ 16-17; 

Feldman Decl. ¶ 14; and it would likely require a sea change in the operations of those NAM 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 16 of 26
 

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members that rely on such fuels or directly emit GHGs. Moutray Decl. ¶ 18. Proposed 

Intervenor-Defendants’ members have a multitude of contracts that would be put in jeopardy and 

permits whose limits and conditions would have to be altered if the Plaintiffs received the relief 

they seek. The relief sought would also undermine massive investments members have made 

over the course of many decades in the innumerable physical and tangible assets of their 

businesses. Under an abrupt and across-the-board switch in the nation’s energy infrastructure of 

the magnitude Plaintiffs are proposing, the Proposed Intervenor-Defendants’ members would be 

required to radically reshape their businesses and operations. For example, they would have to 

consider shutting down domestic manufacturing in the wake of competition from other nations 

that are not subject to such constraints. Id. ¶¶ 17-24; Friedman Decl. ¶ 17. The economic effects 

of the relief sought by Plaintiffs on their members are thus in no way “speculative.” 

The Ninth Circuit recognizes that where a lawsuit “would affect the use of real property 

owned by the intervenor by requiring the defendant to change the . . . [the manner in which it] 

regulate[s] the use of that real property,” such interests “are squarely in the class of interests 

traditionally protected by law.” Sierra Club v. U.S. E.P.A., 995 F.2d 1478, 1483 (9th Cir. 1993) 

abrogated on other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 

2011). Likewise, “a non-speculative, economic interest may be sufficient to support a right of 

intervention.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). See also 

generally Landgraf v. USI Film Products, 511 U.S. 244 (1994) (discussing the centrality of 

settled and legitimate expectations under various fundamental legal principles). The economic 

upheaval that would follow from the relief Plaintiffs seek thus establishes both that the Proposed 

Intervenor-Defendants and their members have legally protected interests and that there is a 

direct relationship between those interests and “‘resolution of plaintiffs’ claim.’” City of Los 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 17 of 26
 

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Angeles, 288 F.3d at 398 (citation omitted); Conservation Law Found. of New England v. 

Mosbacher, 966 F.2d 39, 41-44 (1st Cir. 1992) (holding that commercial fishermen impacted by 

regulatory plan to address overfishing had a recognizable interest in the timetable for 

implementing that plan). Here, as the Proposed Intervenor-Defendants and their members will 

be the parties burdened with satisfying the potentially dramatic fuel switches and GHG 

reductions proposed by Plaintiffs, they clearly satisfy this test for having a recognizable interest. 

In addition, Plaintiffs seek to deprive Proposed Intervenor-Defendants’ members of these 

investments without affording them any say in the matter. The Administrative Procedure Act 

(APA) reflects the bedrock principle that businesses affected by federal executive branch 

regulatory measures have a legal right to participate in the development of, and ultimately to 

challenge, such measures. See generally, 5 U.S.C. §§ 500 et seq. Here, Plaintiffs ask this Court 

to order Defendants to develop a comprehensive “national remedial plan to phase out fossil fuel 

emissions.” Doc. 7 ¶ 7. This plan, which would be issued by court order, would presumably not 

include input from the countless businesses that may be dramatically affected by it, including the 

members of the NAM, AFPM, and API. Promulgation of regulations affecting virtually every 

aspect of the businesses of the NAM AFPM, and API’s members without any meaningful 

participation by those members would violate over half a century of settled administrative law 

principles, and thus affect this additional, protected legal interest of the members of the Proposed 

Intervenor-Defendants as well. 

 Finally, issuing rushed rules governing GHG emissions is likely to be particularly 

harmful, as there is the real possibility that those rules will duplicate or conflict with existing 

regulations and policies that weigh numerous considerations including environmental protection, 

energy security, and international trade issues. For example, the Proposed IntervenorCase 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 18 of 26
 

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Defendants’ members are already subject to many regulations addressing air emissions. Moutray 

Decl. ¶ 8; Friedman Decl. ¶ 8; Feldman Decl. ¶ 8. These regulations include a number that focus 

squarely on GHG emissions. Moutray Decl. ¶ 8; Friedman Decl. ¶ 8; Feldman Decl. ¶ 8. 

Without careful consideration and the active involvement of the NAM, AFPM, API, and other 

stakeholders in developing the rules, it is highly likely that sweeping new GHG rules will create 

conflicts and inconsistencies with the legal regime that their members already face. 

C. Disposition Of This Case May Impair or Impede Proposed IntervenorDefendants’ Ability to Protect Their Interests And The Interests Of Their 

Members. 

To show impairment of interests for the purposes of Rule 24(a)(2), a proposed intervenor 

need show only that the disposition of an action “may as a practical matter” impede the 

intervenor’s ability to protect its interests in the subject of the action. Fed. R. Civ. P. 24(a)(2) 

(emphasis added). In evaluating this question, “‘the court is not limited to consequences of a 

strictly legal nature.’” Forest Conservation Council, 66 F.3d at 1497-98 (citation omitted); see 

also Fed. R. Civ. P. 24 advisory committee’s notes to 1966 Amend. (“If an absentee would be 

substantially affected in a practical sense by the determination made in an action, he should, as a 

general rule, be entitled to intervene. . . .”). Where the relief sought by the Plaintiffs would have 

direct, immediate, and harmful impact on a third party’s interests, that adverse impact is 

sufficient to satisfy Rule 24(a)(2). Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 

2003) (stating that “there is no question” that proposed intervenor Mongolia’s environmental 

agency’s interests would be impaired by a decision in favor of an environmental group in a case 

regarding the application of the U.S. Endangered Species Act to sheep located within Mongolia); 

Sagebrush Rebellion, 713 F.2d at 528 (holding that “an adverse decision in this suit would 

impair [proposed intervenor environmental groups’] interest in the preservation of birds and their 

habitats”). 

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Further, an entity has sufficient interests to intervene where the proceeding has the 

potential to subject the movant to governmental regulation or significantly change how the 

movant does business. See, e.g., Fund for Animals, 322 F.3d at 735 (impact on Mongolian 

environmental agency from outcome of case); Fresno Cty., 622 F.2d at 438 (proposed intervenor 

group of small farmers would be “injured and its [business] opportunity to participate in excess 

land sales impaired” if it could not intervene); cf. Lujan, 504 U.S. at 561-62 (noting that “there is 

ordinarily little question” about standing for plaintiffs who are themselves objects of government 

action or inaction). 

As noted previously, the declaratory and injunctive relief that Plaintiffs seek would force 

the government to abruptly cap GHG emissions and may virtually eliminate conventional fuel 

use across the nation, thereby dramatically increasing the input costs for manufacturing. Moutray 

Decl. ¶¶ 16-24. The dramatic GHG restrictions that Plaintiffs propose will likely add nonproduction costs on U.S. manufacturers that may reduce further the NAM’s members’ global 

competitiveness and market share both domestically as well as in other economies. Id. ¶¶ 19-24. 

As a less competitive location to produce, the U.S. manufacturing sector would end up smaller 

and employ fewer workers, as companies may be encouraged to locate facilities and operations 

in other countries outside the regulatory reach of the United States. Id. Likewise, as trade 

exposed energy intensive manufacturers of transportation fuels and petrochemicals, AFPM’s 

members would be directly harmed by Plaintiffs’ attempts to increase energy costs, which would 

make it more attractive to produce these essential products outside the United States. Friedman 

Decl. ¶ 17. This in turn would result in the loss of thousands of jobs currently supported by 

AFPM members. Id. at 11. Additionally, the proposed GHG cuts which Plaintiffs seek would 

significantly harm API’s members, which in turn will impact the 9.8 million jobs, college and 

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university endowments, and public and private pension plans which depend at least in part on the 

oil and natural gas industry. Feldman Decl. ¶¶ 11, 12, 14. Further, Plaintiffs are seeking to force 

the government to develop regulatory measures to eliminate GHG emissions while depriving 

affected businesses of their rights under the APA to participate in the development of such 

measures. 

These impacts could impair the interests of virtually the entire swath of the NAM, 

AFPM, and API’s members. 

D. The Government Cannot Adequately Represent Proposed IntervenorDefendants’ Interests. 

The requirement under Federal Rule of Civil Procedure 24(a)(2) to show inadequate 

representation “is satisfied if the applicant shows that representation of his interest ‘may be’ 

inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. 

United Mine Workers of America, 404 U.S. 528, 538 n.10 (1972) (citation omitted). The “burden 

of showing inadequate representation...is not onerous.” Dimond v. District of Columbia, 792 

F.2d 179, 192 (D.C. Cir. 1986). In assessing this factor, a court must consider whether “the 

interests of a present party to the suit are such that it will undoubtedly make all of the 

intervenor’s arguments[;]” whether “the present party is capable of and willing to make such 

arguments[;]” and whether “the intervenor would not offer any necessary element to the 

proceedings that the other parties would neglect.” Fresno Cty., 622 F.2d at 439 (emphasis 

added). 

The Proposed Intervenor-Defendants’ interests here include protecting the legal rights 

and economic interests of their members by opposing Plaintiffs’ attempt to have this Court force 

an abrupt rewrite of the energy policy of the United States. Defendants cannot be expected to 

adequately represent the Proposed Intervenor-Defendants’ interests. As government agencies, 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 21 of 26
 

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Defendants are focused on a broad “representation of the general public interest,” not the 

“narrower interest” of certain businesses. Forest Conservation Council, 66 F.3d at 1499 (noting 

that a government agency was “required to represent a broader view than the more narrow, 

parochial interests of” the intervenors); Dimond, 792 F.2d at 192-93 (“A government entity. . . is 

charged by law with representing the public interest of its citizens. [A private party], on the 

other hand, is seeking to protect a more narrow and ‘parochial’ financial interest. . . .”). This 

private interest/public interest distinction has justified intervention in many other cases. See, 

e.g., Sierra Club v. Espy, 18 F.3d 1202, 1208 (5th Cir. 1994); Fresno Cty., 622 F.2d at 438-39; 

Natural Res. Def. Council v. Costle, 561 F.2d 904, 912 (D.C. Cir. 1977); Fund for Animals, 322 

F.3d at 736. 

In addition, Defendants, who are currently implementing GHG controls through 

numerous regulations and other measures, cannot be expected to adequately represent the 

Proposed Intervenor-Defendants’ interests regarding the specific issue of the regulation of GHG 

emissions. The Proposed Intervenor-Defendants have repeatedly expressed concern regarding 

aspects of the federal government’s approach to regulating and controlling GHG emissions from 

a wide range of sources and have challenged a number of Defendants’ GHG regulations in court 

as well as raised concerns on certain GHG regulations proposed by the federal government 

through notice and comment opportunities. Moutray Decl. ¶¶ 25-26; Friedman Decl. ¶¶ 18-19; 

Feldman Decl. ¶¶ 15, 17. Thus, the interests of the NAM, AFPM, and API are not in any way 

coterminous with Defendants’ interest as reflected in the GHG controls and measures Defendants 

have thus far adopted. 

II. In the Alternative, The Proposed Intervenor-Defendants Should Be Granted Leave 

For Permissive Intervention Under Federal Rule of Civil Procedure 24(b). 

Federal Rule of Civil Procedure 24 contemplates two forms of intervention—intervention 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 22 of 26
 

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of right and permissive intervention—and a court may grant an intervenor’s motion on either 

basis. UAW, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965). Permissive intervention 

under Rule 24(b) should be allowed when: (1) the applicant has independent grounds for 

jurisdiction; (2) the applicant’s motion is timely; and (3) the applicant’s claim or defense, and the 

main action, have a question of law or a question of fact in common. Nw. Forest Res. Council v. 

Glickman, 82 F.3d 825, 839 (9th Cir. 1996). Under this standard, neither the inadequacy of 

representation, nor a direct interest in the subject matter of the action, need be shown. Kootenai 

Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002), abrogated on other grounds by 

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). In exercising its 

discretion, the Court must also consider “whether the intervention will unduly delay or prejudice 

the adjudication of the rights of the original parties.” Fed. R. Civ. P. 24(b)(2). 

As previously demonstrated, the Proposed Intervenor-Defendants’ Motion to Intervene is 

timely, will not cause undue delay, and will not prejudice Plaintiffs or Defendants. Moreover, as 

discussed above, the Proposed Intervenor-Defendants possess legally protectable interests in 

their members’ economic interests and legal rights in current and future contracts and 

transactions subject to Plaintiffs’ challenge. The potential for harm to those interests from 

Plaintiffs’ suit provides an independent basis for jurisdiction, particularly given the minimal 

showing required by Federal Rule of Civil Procedure 24(b). See, e.g., In re Cal. Micro Devices 

Sec. Litig., 168 F.R.D. at 277 (using cursory analysis to find pension fund could intervene under 

Rule 24(b)). 

As previously noted, the NAM, AFPM, and API’s members’ economic and legal interests 

are directly at issue in this suit, and thus their own interests are at issue. The NAM, AFPM, and 

API have concrete interests in the production, refining, and use of conventional fuels in the 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 23 of 26
 

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United States, as well as in stable and competitive energy prices. The Proposed IntervenorDefendants are also asserting interests in their ability to provide input into the policy decisions 

that will shape the fundamental prospects and global competitiveness of their members. Those 

activities are directly challenged in this litigation and may be preliminarily or permanently 

limited and restricted as a result of actions of the Court if the Plaintiffs are successful. For that 

reason, the Proposed Intervenor-Defendants’ claims and defenses will raise questions of law and 

fact in common with those raised in the main action between Plaintiffs and Defendants. See, 

e.g., Conservation Nw. v. U.S. Forest Serv., No. CV-05-0220, 2005 WL 1806364, at *2 (E.D. 

Wash. July 28, 2005) (finding private company’s interest in defending a lumber harvesting 

project in order to guard against a court order barring it was sufficient to establish common 

claims and defenses). Because intervention would contribute to the just and equitable 

adjudication of the legal questions presented, it should be permitted. 

III. Conclusion 

For the foregoing reasons, the NAM, AFPM, and API respectfully request that the Court 

grant its motion for leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a) with respect to 

all of Plaintiffs’ claims. In the alternative, the NAM, AFPM, and API request that they be 

granted permissive intervention pursuant to Fed. R. Civ. P. 24(b) with respect to all of Plaintiffs’ 

claims. 

DATED this 12th day of November, 2015. 

 MILLER NASH GRAHAM & DUNN LLP 

 /s/ C. Marie Eckert 

C. Marie Eckert, OSB No. 883490 

marie.eckert@millernash.com 

Suzanne C. Lacampagne, OSB No. 951705 

suzanne.lacampagne@millernash.com 

Telephone: (503) 224-5858 

Facsimile: (503) 224-0155 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 24 of 26
 

Page 20 Memorandum in Support of Motion to Intervene 

70061495.1 

SIDLEY AUSTIN LLP 

Roger R. Martella, Jr. 

rmartella@sidley.com 

Quin M. Sorenson 

qsorenson@sidley.com 

Benjamin E. Tannen btannen@sidley.com 

(to be specially admitted)

1501 K Street, N.W. 

Washington, D.C. 20005 

Telephone: (202) 736-8000 

Facsimile: (202) 736-8711 

Attorneys for Proposed Intervenor-Defendants 

The National Association of Manufacturers, 

American Fuel & Petrochemical Manufacturers, 

and American Petroleum Institute 

MANUFACTURERS’ CENTER FOR LEGAL 

ACTION 

Linda E. Kelly 

Quentin Riegel 

qriegel@nam.org 

733 10th Street, NW, Suite 700 

Washington, DC 20001 

Telephone: (202) 637-3000 

Facsimile: (202) 637-3182 

AMERICAN FUEL & PETROCHEMICAL 

MANUFACTURERS 

Richard Moskowitz 

RMoskowitz@afpm.org 

1667 K Street, NW, Suite 700 

Washington, DC 20006 

Telephone: (202) 457-0480 

Facsimile: (202) 457-0486

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 25 of 26
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Page 1 - Certificate of Service 

70061495.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

T: 503.224.5858 | F: 503.224.0155 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

I hereby certify that I served the foregoing Memorandum in Support of Motion to 

Intervene on: 

Julia A. Olson 

Wild Earth Advocates 

1216 Lincoln Street 

Eugene, Oregon 97401 

E-mail: juliaaolson@gmail.com 

Attorney for Plaintiffs 

Daniel M. Galpern

Law Offices of Daniel M. Galpern 

1641 Oak Street 

Eugene, Oregon 97401 

E-mail: dan.galpern@gmail.com 

Attorney for Plaintiffs 

Philip L. Gregory 

Cotchett, Pitre & McCarthy, LLP 

840 Malcolm Road 

Burlingame, California 94010 

E-mail: pgregory@cpmlegal.com 

Attorney for Plaintiffs 

Justin Torres

U.S. Department of Justice 

Environment & Natural Resources Division 

Natural Resources Section 

601 D. Street NW 

Washington, D.C. 20044 

E-mail: justin.torres@usdoj.gov 

Attorney for Defendants

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

 E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties. 

 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

DATED this 12th day of November, 2015. 

/s/ C. Marie Eckert 

C. Marie Eckert, P.C. 

Oregon State Bar No. 883490 

Of Attorneys for Proposed IntervenorDefendants The National Association of 

Manufacturers, American Fuel & 

Petrochemical Manufacturers, and American 

Petroleum Institute 

Case 6:15-cv-01517-TC Document 15 Filed 11/12/15 Page 26 of 26