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Eighth Circuit Denies Intervention to Dischargers in a Clean Water Act Lawsuit
July 7, 2009
by Eric W. Davis
On June 22, 2009, the U.S. Court of Appeals for the Eighth Circuit affirmed an order denying a motion brought by industrial wastewater dischargers to intervene in a lawsuit alleging violations of the Clean Water Act (33 U.S.C. § 1251 et seq.) by the Metropolitan St. Louis Sewer District (District). This decision in United States v. Metropolitan St. Louis Sewer District (Case No. 08-3404, E.D. Missouri) may impose new requirements on parties seeking to intervene in Clean Water Act enforcement actions, even in courts that have traditionally taken a more permissive approach toward intervention.
Under article 3 of the U.S. Constitution, federal court jurisdiction is limited to cases in controversy brought by aggrieved parties demonstrating an actual or imminent injury that can be remedied by the courts. The courts refer to this requirement as “standing.”
A party not named as a plaintiff or defendant in litigation may seek to participate in an action by filing a motion to intervene with the court. The Federal Rules of Civil Procedure permit a party to intervene in litigation whenever a statute expressly conveys that right, or when a party claiming an interest related to the litigation might be impeded from protecting that interest absent participation in the litigation. The Clean Water Act grants citizens a right to intervene in enforcement actions prosecuted by the government.
Federal courts of appeal have different opinions as to whether a party meeting the aforementioned intervention requirements must also satisfy standing requirements applicable to plaintiffs. In the Second, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits an intervenor need not independently demonstrate constitutional standing, so long as another party on the same side of the litigation has standing. In the Eighth Circuit and the D.C. Circuit, however, an intervening party must independently demonstrate standing as if it were a plaintiff commencing the action.
District Court Proceedings
State and federal officials brought suit in federal court alleging, among other things, that the District violated the federal Clean Water Act by discharging raw sewage to local waterways. The Missouri Coalition for the Environment Foundation (Coalition), a nonprofit organization of businesses holding industrial discharge permits issued by the District, sought limited intervention in the litigation. The Coalition did not seek to participate in the proceedings on the merits of the underlying Clean Water Act allegations, but rather sought to participate in any remedy proceedings. The Coalition was concerned that penalties or remedial work imposed by the court might indirectly increase rates or fees for its members. The district court denied the Coalition’s motion to intervene on the grounds that it lacked standing to participate in the litigation. The Coalition appealed.
Eighth Circuit Decision
In affirming the district court’s denial of intervention, the Eighth Circuit relied on its precedent generally requiring intervenors to demonstrate standing in all cases. The Eighth Circuit panel went a step further, however, to interpret specific language in the Clean Water Act as requiring all parties bringing an enforcement action to demonstrate standing.
The Eighth Circuit rejected both of the Coalition’s claims to standing. First, it found that the Coalition did not have standing to intervene on behalf of its members because the Coalition’s stated purpose did not relate to environmental protection or the protection of aesthetic or recreational interests at issue in the litigation. Second, the appellate court found that the alleged harm of increased fees resulting from a potential court remedy was too speculative to justify participation in the action. The appellate court reasoned that whether any penalty would result in increased costs to the Coalition’s members depended not only on the court’s ruling, but also on the District’s ability and willingness to pass those costs on to its industrial discharge permittees. Absent any indication that an adverse judgment would clearly impact the Coalition’s members, the appellate court reasoned, there was no injury of sufficient certainty to establish standing for the Coalition.
In addition, the Eighth Circuit held that the statutory right to intervene provided to “citizens” by the Clean Water Act is limited to those parties who seek to enforce the Act and not to parties who merely claim a financial interest in the outcome of the litigation. Thus, in addition to imposing a standing requirement on potential intervenors, the Eighth Circuit narrowed the definition of “citizens” entitled by statute to intervene in federal water quality enforcement actions.
The outcome of United States v. Metropolitan St. Louis Sewer District is not surprising, given the Eighth Circuit’s prior rulings requiring potential intervenors to show standing. However, its interpretation of the Clean Water Act as imposing standing requirements for intervention suggests that prospective intervenors in Clean Water Act enforcement actions across the nation may be required to demonstrate standing regardless of whether the relevant court of appeal generally requires intervenors to demonstrate standing. The Eighth Circuit’s decision may be especially noteworthy in the Ninth Circuit where intervening parties generally do not have to demonstrate standing. If the Ninth Circuit were to adopt the Eighth Circuit’s interpretation of the Clean Water Act, standing requirements would be imposed on parties seeking to intervene in water quality enforcement actions within the Ninth Circuit, including California.
The Eighth Circuit opinion in United States v. Metropolitan St. Louis Sewer District may be viewed online at http://bit.ly/12nSkE.
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