ELR Citation: ELR 20148
No(s). 87-6124 (2d Cir. Dec 1, 1987)

The court holds that the American Petroleum Institute is not entitled to intervene as of right in a citizen suit brought under Clean Air Act §304(a) seeking to compel New York to implement ozone control strategies contained in its state implementation plan, and to compel the Environmental Protection Agency to order the state to revise its ozone and carbon monoxide control strategies. Federal Rule of Civil Procedure 24(a)(2) requires a determination whether a would-be intervenor's interests are adequately represented by existing parties to the litigation. It is not sufficient that existing parties have motives different from the would-be intervenor's, so long as existing parties have demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions. In this case the American Petroleum Institute has not shown that its interests relate to colorable legal defenses that the government defendants would be less able to assert, or that defenses it would raise and which are not being raised by the government defendants are related to its interests.

[A related decision appears at 18 ELR 20106.]

Counsel for Appellant
Joseph J. Zedrosser
Rivkin, Radler, Dunne & Bayh
EAB Plaza, Uniondale NY 11556-0111
(516) 357-3000

Counsel for Plaintiffs-Appellees
Eric A. Goldstein
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendants-Appellees
Richard W. Mark, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Before Graafeiland and Meskill, JJ.