ELR Citation: ELR 21340
No(s). 87 Civ. 505 (MEL) (S.D.N.Y. Jun 5, 1991)

The court denies a motion by the cosmetic and chemical associations' to intervene under Federal Rule of Civil Procedure 24(a)(2) or 24(b)(2) as defendants in this citizen suit to require New York to carry out its state implementation plan (SIP) designed to reduce atmospheric ozone and carbon monoxide levels under the Clean Air Act. The Environmental Protection Agency (EPA) approved New York State's 1984 proposed SIP as abiding by federal statutory requirements. In 1987, plaintiff environmental group sued to require New York State to carry out the provisions of its SIP, and this court so ordered.

The court holds that the associations' motion to intervene is not timely, since both associations have had four to five years to move for intervention. The record shows that the associations had an opportunity, as did all citizens, to comment on EPA's proposal to approve New York State's 1984 proposed plan, but failed to do so. Moreover, neither of the associations, nor any of their members, exercised their right to appeal the EPA ruling to the court of appeals under §307(b)(1) of the Clean Air Act. The court further rejects the associations' argument that the 1990 Clean Air Act amendments establish a new factual and legal context supporting the timeliness of their motion, since §193 of the 1990 amendments expressly provides that control measures required prior to the amendments may not be modified in any manner, unless they provide for equal or greater emission reductions. Thus, the 1990 amendments do not affect the control measures the state of New York adopted in its SIP.

The court further holds that plaintiff environmental group would be prejudiced by the delays likely to result from granting the associations' intervention, because the state has already fallen behind in complying with the court ordered timetable for implementing the consumer and commercial strategy components of the SIP. If intervention were granted, the associations would almost certainly litigate aspects of the plan approved by the court. Where the proposed intervenors participated in state administrative hearings and have the continuing right to participate in any change in the SIP regulations proposed by the state, and where they could have moved to intervene earlier and promptly in the pending litigation, it is appropriate to deny a request for intervention. Finally, the associations have not shown that further disposition of the action will impair their ability to protect their interests or that the state defendant in this case would not adequately represent the associations' economic interests.

[Previous decisions in this litigation are published at 18 ELR 20106, 20148, and 19 ELR 20513.]

Counsel for Plaintiffs
Eric A. Goldstein
Natural Resources Defense Council, Inc.
40 W. 20th St., New York NY 10011
(212) 727-2700

Counsel for Intervenors
James S. Frank
Vedder, Price, Kaufman, Kammholz & Day
1 Dag Hammarskjold Plaza, New York NY 10017
(212) 223-1880