ELR Citation: ELR 21503
No(s). s. 91-2331, -2334 (4th Cir. Sep 20, 1991)

The court holds that environmental organizations are entitled to intervene in a suit by hazardous waste treatment companies seeking to enjoin the enforcement of a South Carolina hazardous waste facility permitting regulation. The regulation requires applicants to demonstrate in-state need before obtaining a permit for a new or expanded facility in South Carolina for the treatment, storage, or disposal of hazardous waste. The court first holds that the environmental organizations have an interest in the transaction that is the subject of the companies' lawsuit. The environmental organizations are parties to administrative permitting proceedings in which the regulation is involved. Enjoining certain sections of the regulation in the district court will impede the organizations' abilities to protect their interest in the administrative proceedings. Moreover, the court notes that the districtcourt incorrectly bolstered its denial of the organizations' right to intervene by referring to judicial economy and the need for guidance, because Federal Rule of Civil Procedure 24(a) affords no weight to these issues. The court next holds that the South Carolina Department of Health and Environmental Control (DHEC), which is the defendant in the companies' injunction action, is not an adequate representative for the environmental organizations. The DHEC, in theory, should represent all of the citizens of the state, but the environmental organizations do not need to consider the interests of all South Carolina citizens. Further, the interests of the DHEC and the environmental organizations diverge on the appropriate disposition of sections of the regulation that may not violate the Commerce Clause, the balance of hardships accruing to the parties if part of the regulation is enjoined, and the public interest factor to be weighed in a preliminary injunction analysis. Finally, the court holds that the district court abused its discretion in denying, without offering any reasons, the environmental organizations' motion to intervene in a related case. Recognizing that the question of intervention is one initially for the district court, the court remands to permit the district court to reconsider the organizations' intervention in the related case.

[Related decisions are published at 21 ELR 20672 and 21494.]

Counsel for Appellant
James S. Chandler Jr.
South Carolina Environmental Law Project
P.O. Box 279, Pawleys Island SC 29585
(803) 527-0078

Matthew D. Slater
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Counsel for Appellees
Stuart Henry Newberger
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Richard H. Willis
Nelson, Mullins, Riley & Scarborough
P.O. Box 11070, Columbia SC 29211
(803) 799-2000