Sierra Club v. EPA ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4174
SIERRA CLUB, INC.,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________
Petition for Review of Final Agency Action.
____________
SUBMITTED FEBRUARY 5, 2004—DECIDED FEBRUARY 19, 2004
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge. After the Illinois
Environmental Protection Agency issued a permit au-
thorizing Indeck-Elwood LLC to construct a 660-megawatt
coal-fired power plant in Elwood, Illinois, the Sierra Club
filed a petition for review naming the United States
Environmental Protection Agency as the sole respon-
dent—even though it has taken no action in response to the
state’s decision. Cf. Alaska Department of Environmental
Conservation v. EPA, No. 02-658 (U.S. Jan. 21, 2004). The
petition also seeks review of a letter sent by a subordinate
official at the EPA to a subordinate official at the U.S. Fish
and Wildlife Service. How intra-governmental correspon-
dence could be subject to judicial review as “final” agency
action is not readily apparent. The EPA tells us that it
2 No. 03-4174
plans to ask that the petition be dismissed on jurisdictional
grounds. Meanwhile, three entities have moved to intervene
under Fed. R. App. P. 15(d): Indeck-Elwood, the Illinois
State Chamber of Commerce, and the Illinois Environmen-
tal Regulatory Group. The third appears to be a subset of
the second, which describes itself as an association of
companies that could be affected by environmental rules
(and, doubtless, just about any other statutes and regula-
tions). We refer to the two collectively as “the Chamber.”
Not a peep has been heard from the Illinois Environmental
Protection Agency in the two months since the Sierra Club
filed its petition, which was not served on the state agency.
Perhaps Illinois is unaware of this litigation; the parties
must ensure that it is alerted.
Rule 15(d) does not provide standards for intervention, so
appellate courts have turned to the rules governing in-
tervention in the district courts under Fed. R. Civ. P. 24.
See Automobile Workers v. Scofield, 382 U.S. 205, 209-10,
216-17 & n.10 (1965); Texas v. Department of Energy, 754
F.2d 550 (5th Cir. 1985). Persons whose legal interests are
at stake are appropriate intervenors, so we grant Indeck-
Elwood’s motion. This follows the pattern in litigation
under the National Labor Relations Act, where the losing
side (either the union or the employer) petitions for review,
thus becoming a party, and the other intervenes to defend
its victory before the Labor Board. An agency will stick up
for its actions in response to the petition for review, but if
it loses the Solicitor General may decide that the matter
lacks sufficient general importance to justify proceedings
before the court en banc or the Supreme Court. Intervention
by the original victor places the private adversaries on
equal terms and permits both to make their own decisions
about the wisdom of carrying the battle forward.
The Chamber, by contrast, lacks any direct interest in the
outcome. Rule 24(a)(2) provides that, unless a statute
governs (and none does so here), intervention is proper
No. 03-4174 3
“when the applicant claims an interest relating to the
property or transaction which is the subject of the action
and the applicant is so situated that the disposition of
the action may as a practical matter impair or impede
the applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing
parties.” The Chamber does not have “an interest relating
to the property or transaction which is the subject of the
action”; its concern is not a legal “interest” (the permit at
stake affects only one power plant) but a political or pro-
grammatic one: the Chamber favors more business and less
environmental regulation. That does not justify inter-
vention. Indeed, it does not necessarily justify even a filing
as amicus curiae. Courts value submissions not to see how
the interest groups line up, but to learn about facts and
legal perspectives that the litigants have not adequately
developed. See National Organization for Women, Inc. v.
Scheidler, 223 F.3d 615 (7th Cir. 2000); Voices for Choices
v. Illinois Bell Telephone Co., 339 F.3d 542 (7th Cir. 2003)
(chambers opinion). Until the Chamber has had an opportu-
nity to discuss with the parties’ lawyers what arguments
will be made in their briefs, it is not possible to know
whether an additional brief on the Chamber’s behalf would
have anything useful to contribute.
Even if the Chamber had a legal interest to protect, it
could not intervene as long as that interest is “adequately
represented by existing parties.” Indeck-Elwood will defend
the state agency’s decision, and the federal EPA is likely to
do so. The Chamber says that it fears that the parties will
settle the proceeding, but this is a reason to deny rather
than allow intervention. Why should the Chamber receive
an entitlement to nix a settlement (if one can be reached)
that the Sierra Club, Indeck-Elwood, and the EPA all favor?
Officious intermeddlers ought not be allowed to hijack
litigation that the real parties in interest can resolve to
mutual benefit.
4 No. 03-4174
According to the Chamber, two courts of appeals—this
circuit plus the D.C. Circuit—have permitted it to intervene
in litigation against the EPA. None of these decisions
provides an explanation, and none is published, so they
have no precedential force. For all we can tell, in those
cases the Chamber represented a member that would have
been allowed to intervene on its own behalf. Moreover,
associations that could have filed their own petitions for
review of regulations that affect their members may be able
to intervene if someone else beats them to the punch. It is
unnecessary for us to speculate about why intervention was
allowed on those other occasions. Neither the Chamber nor
any of its members would have been entitled to file a
petition to review either the Illinois agency’s decision to
grant a permit or the inter-agency correspondence in
question. When the time comes, the Chamber may seek
leave to participate as amicus curiae; it is not entitled to
participate as a party and its motion to intervene is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-04