ELR Citation: ELR 20934
No(s). 92-6060 (2d Cir. May 4, 1992)

The court holds that the district court did not abuse its discretion in denying intervention by 67 electric utility companies and three utility associations in a Clean Air Act (CAA) citizen suit to compel the U.S. Environmental Protection Agency (EPA) to review and revise the national ambient air quality standards (NAAQS) for ozone. The citizen suit alleged that EPA had breached its nondiscretionary duty under CAA §109(d) to review at five-year intervals the ozone NAAQS for possible revision. The court first holds that the utilities' interest in intervention is too remote, because it is contingent upon the plaintiffs' success in the suit followed by EPA's downward revision of the NAAQS. The court further notes that the utilities have asserted defenses similar to defendant EPA's and can still adequately present their views later during the judicially ordered comment period. The court also affirms the district court's subject matter jurisdiction. The court holds that EPA's failure to meet the statutory deadline for NAAQS review and revision is not an unreasonable delay that would confer exclusive jurisdiction on the U.S. District Court for the District of Columbia under CAA §307(b)(1).

Counsel for Appellants
Henry V. Nickel
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1500

Counsel for Plaintiff-Appellee
Robert Abrams, Attorney General
120 Broadway, New York NY 10271
(212) 416-8000

Before Timbers and Mukasey, JJ.