Ronald Fleshman, Jr. v. Volkswagen, Ag , 894 F.3d 1030 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE VOLKSWAGEN “CLEAN No. 16-17060
DIESEL” MARKETING, SALES
PRACTICES, AND PRODUCTS D.C. No.
LIABILITY LITIGATION, 3:15-md-02672-
CRB
JASON HILL ET AL.,
Plaintiffs, OPINION
and
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VOLKSWAGEN, AG; VOLKSWAGEN
GROUP OF AMERICA, INC.; AUDI,
AG; AUDI OF AMERICA, LLC;
PORSCHE CARS NORTH AMERICA,
INC.; ROBERT BOSCH GMBH;
ROBERT BOSCH, LLC,
Defendants-Appellees,
v.
RONALD CLARK FLESHMAN, JR.,
Proposed Intervenor,
Movant-Appellant.
2 IN RE VOLKSWAGEN LITIGATION
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Argued and Submitted December 7, 2017
Pasadena, California
Filed July 3, 2018
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
IN RE VOLKSWAGEN LITIGATION 3
SUMMARY*
Intervention / Clean Air Act
The panel affirmed the district court’s denial of a motion
to intervene, filed by a disgruntled owner of a 2012
Volkswagen, in the federal government’s Clean Air Act
enforcement action against Volkswagen.
The government’s suit arose from the car manufacturer’s
installation in some of its cars of “defeat devices” that
allowed Volkswagen to cheat on emissions tests. The parties
reached a final proposed consent decree, and the government
filed its enforcement action with the court.
The panel held that the Clean Air Act’s citizen suit
provision, 42 U.S.C. § 7604, did not grant the movant an
“unconditional right” to intervene under Fed. R. Civ. P.
24(a)(1). First, the panel held that § 7604(b)(1)(B)’s diligent
prosecution bar circumscribed a citizen’s right to intervene in
an enforcement action under that same provision. The panel
further held that a citizen who retained the right to file suit on
his own, despite a government enforcement action, had no
statutory right to intervene in that action. Second, the panel
held that the government was not suing to enforce a
“standard, limitation, or order” within the meaning of the
Clean Air Act, and therefore the diligent prosecution bar did
not preclude movant’s claims and he was free to bring his
own citizen suit. Accordingly, the movant had no statutory
right to intervene in the government enforcement action
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE VOLKSWAGEN LITIGATION
under the Clean Air Act. Alternatively, the panel held that
movant’s proposed complaints-in-intervention demonstrated
that he was not seeking to enforce the provisions invoked by
the government, and therefore he could have filed his own
suit and was not entitled to intervene in the government’s
action.
The panel held that movant could not intervene as of
right under Fed. R. Civ. P. 24(a)(2) because he had no
standing for the relief he sought.
COUNSEL
James Ben Feinman (argued), Lynchburg, Virginia, for
Movant-Appellant.
Brian C. Toth (argued), Washington, D.C., for Defendants-
Appellees.
Sharon Nelles (argued), New York, New York, for
Defendants-Appellees.
IN RE VOLKSWAGEN LITIGATION 5
OPINION
BERZON, Circuit Judge:
Ronald Clark Fleshman, Jr., the disgruntled owner of a
2012 Volkswagen Jetta, appeals the denial of his motion to
intervene in the federal government’s Clean Air Act suit
against Volkswagen, AG and several of its subsidiaries
(collectively Volkswagen or VW). The government’s suit
arose from the car manufacturer’s installation in some of its
cars of “defeat devices”—surreptitious pieces of software that
allowed VW to cheat on emissions tests. Six months after
filing suit, the parties reached a final proposed consent
decree, and the government filed it with the court. Our
question is whether Fleshman was entitled to intervene in the
government’s enforcement action. We conclude that he was
not.
I
A. The Clean Air Act
The Clean Air Act “protect[s] and enhance[s] the quality
of the Nation’s air resources so as to promote the public
health and welfare and the productive capacity of its
population.” 42 U.S.C. § 7401(b)(1).1 Toward that end, the
Act directs the Environmental Protection Agency (EPA)
Administrator to prescribe emissions standards for new
automobiles. See § 7521(a)(1); Massachusetts v. EPA,
549 U.S. 497, 506 (2007). Each model year of a
manufacturer’s vehicles must carry a “certificate of
1
All statutory citations are to the Clean Air Act, 42 U.S.C. § 7401 et
seq., unless otherwise stated.
6 IN RE VOLKSWAGEN LITIGATION
conformity” (COC) establishing those vehicles’ compliance
with the relevant emissions standards. § 7522(a)(1);
40 C.F.R. § 86.1848-01. The Act prohibits the installation in
a new automobile of any device that bypasses or defeats the
operation of emission control systems. § 7522(a)(3).
As to enforcement, the Act also grants “any person” the
right to bring a civil action challenging the violation of
“(A) an emission standard or limitation under this chapter or
(B) an order issued by the [EPA] Administrator or a State
with respect to such a standard or limitation.” § 7604(a)(1).
Such a suit may not be brought, however, “if the
Administrator or State has commenced and is diligently
prosecuting a civil action . . . to require compliance with the
standard, limitation, or order.” § 7604(b)(1)(B). But “in any
such action . . . any person may intervene as a matter of
right.” Id.
B. State implementation plans (SIPs)
The Clean Air Act “ma[kes] the States and the Federal
Government partners in the struggle against air pollution.”
Gen. Motors Corp. v. United States, 496 U.S. 530, 532
(1990). Pursuant to that cooperative scheme, the EPA sets
national ambient air quality standards, and the states develop
state implementation plans (SIPs), subject to the approval of
the EPA, to implement those standards. See id. at 532–33;
see also § 7410(a).
The SIPs work toward attainment of national air quality
standards primarily by regulating “stationary sources” like
power plants and factories. See Engine Mfrs. Ass’n v. EPA,
88 F.3d 1075, 1078–79 (D.C. Cir. 1996); Jensen Family
Farms, Inc. v. Monterey Bay Unified Air Pollution Control
IN RE VOLKSWAGEN LITIGATION 7
Dist., 644 F.3d 934, 938 (9th Cir. 2011). Regulation of
“mobile sources” is the province of the federal government.
In fact, the Act prohibits the states from setting emissions
standards for new automobiles; only the EPA may do that.2
See Engine Mfrs. Ass’n, 88 F.3d at 1079; § 7543(a). With
that exception, the Act “preserves the right of states
‘otherwise to control, regulate, or restrict the use, operation,
or movement of registered or licensed motor vehicles.’”
Engine Mfrs. Ass’n, 88 F.3d at 1093 (quoting § 7543(d)).
II
A. Discovery of “defeat devices” & ensuing litigation
In May 2014, researchers at West Virginia University
published a study showing that two of Volkswagen’s 2.0-liter
“light diesel” models emitted significantly higher quantities
of pollutants during normal road operation than during
emissions testing.3 Following publication of the study,
Volkswagen represented to the EPA and to the California Air
Resources Board (CARB) that the identified discrepancies
were caused by “technical issues and unexpected in-use
[driving] conditions.” Testing by the EPA and CARB
demonstrated that Volkswagen’s explanations did not account
2
Except for California, or states that adopt emissions standards
identical to California’s. See § 7543(b)(1); Engine Mfrs. Ass’n, 88 F.3d
at 1079–80.
3
The study referred to the models as “Vehicle A” and “Vehicle B.”
The EPA and CARB identified them as the 2012 Jetta and 2013
Passat. W. Va. Univ. Ctr. for Alt. Fuels, Engines & Emissions, In-Use
Emissions Testing of Light-Duty Vehicles in the U.S. 9 (2014),
https://www.theicct.org/sites/default/files/publications/WVU_LDDV_in-
use_ICCT_Report_Final_may2014.pdf.
8 IN RE VOLKSWAGEN LITIGATION
for the disparate emissions levels. Unsatisfied, the two
agencies threatened to withhold certificates of conformity for
Volkswagen’s 2016 model year light diesel cars, without
which the company could not sell the cars in the United
States.
Under that pressure Volkswagen confessed: its 2.0-liter
light diesel models released between 2009 and 2015
contained a “defeat device.” The device was designed so that
when it sensed—and only when it sensed—the precise
driving conditions of an emissions compliance test, software
in the car altered engine performance so the vehicle emitted
permissible levels of nitrogen oxide (NOx). Nitrogen oxide
reacts with other compounds in the atmosphere to form ozone
and smog. When the cars equipped with a defeat device
operated under normal “in-use” road conditions, they emitted
between 10 and 40 times the EPA-compliant level of NOx.
On September 18, 2015, the EPA sent a “Notice of
Violation” (NOV) to Volkswagen stating that VW’s
installation of the defeat device on certain 2.0-liter VW diesel
automobiles (the “affected vehicles”) violated the Clean Air
Act. Soon after, the EPA issued a press release, which
contained the following message for vehicle owners:
Car owners should know that although these
vehicles have emissions exceeding standards,
these violations do not present a safety hazard
and the cars remain legal to drive and resell.
Owners of cars of these models and years do
not need to take any action at this time.
(emphasis added).
IN RE VOLKSWAGEN LITIGATION 9
The VW defeat device scheme became front page news
across the country. By December 2015, hundreds of private
lawsuits against Volkswagen, most of them class actions,
were filed in or removed to federal court. See In re
Volkswagen “Clean Diesel” Mktg., Sales Practices, and
Prods. Liab. Litig., 148 F. Supp. 3d 1367, 1368 (J.P.M.L.
2015). The Judicial Panel on Multidistrict Litigation (JPML)
transferred all pending defeat device-related cases to Judge
Charles Breyer in the Northern District of California (district
court or MDL court) for “coordinated or consolidated pretrial
proceedings.” Id. at 1370.
The government soon joined in. On January 4, 2016, the
United States filed a civil enforcement action against VW,
under Section 203 of the Clean Air Act, 42 U.S.C. § 7522, in
the Eastern District of Michigan. The complaint alleged four
violations of the Clean Air Act:
1. Certificates of conformity (COCs). VW imported
and sold cars not covered by a certificate of
conformity, because the vehicles equipped with defeat
devices did not “conform in all material respects” to
the specifications described in the applications for
those vehicles’ certificates of conformity, in violation
of Section 203(a)(1) of the Act, 42 U.S.C.
§ 7522(a)(1). Complaint at 8–9, 20–21, United States
v. Volkswagen AG, No. 1:16-cv-10006 (E.D. Mich.
Jan. 4, 2016) [hereinafter Gov’t Compl.].
2. Defeat devices. VW manufactured and sold vehicles
equipped with a “defeat device,” in violation of
Section 203(a)(3)(B) of the Act, 42 U.S.C.
§ 7522(a)(3)(B). Gov’t Compl. at 9–10, 21–22; see
10 IN RE VOLKSWAGEN LITIGATION
also 40 C.F.R. § 86.1803-01 (defining “defeat
device”).
3. Tampering. VW’s defeat device was an “auxiliary
emission control device” (AECD) that “ha[d] the
effect of removing or rendering inoperative devices or
elements of design” of its vehicles, in violation of
Section 203(a)(3)(A) of the Act, 42 U.S.C.
§ 7522(a)(3)(A). Gov’t Compl. at 9–11, 23–24.
4. Reporting. VW violated its reporting obligations
under the Act by not disclosing the AECD/defeat
device in its applications for COCs, in violation of
Section 203(a)(2) of the Act, 42 U.S.C. § 7522(a)(2).
Gov’t Compl. at 11–12, 24–25.
The complaint covered both 2.0-liter and 3.0-liter diesel
vehicles. The government sought (1) injunctive relief
prohibiting VW from continuing to engage in the conduct
alleged; (2) an order mandating appropriate steps by VW,
including mitigation of NOx emissions, to remedy the
violations of the Act; and (3) civil penalties for each violation
of the Act. The JPML transferred the enforcement action to
the MDL court on January 15, 2016.
B. The settlement process
Shortly after the government filed suit, the district court
appointed Robert S. Mueller III as Settlement Master to “to
facilitate settlement discussions among all parties to this
multi-district litigation as soon as is feasible.” The court
selected lead counsel and a 22-member Plaintiffs’ Steering
Committee (PSC) to manage consolidated pre-trial litigation
for the class. A “government coordinating counsel” was
IN RE VOLKSWAGEN LITIGATION 11
appointed to represent the government’s interests during pre-
trial proceedings and settlement talks.4
The parties to the various cases reached an agreement in
principle concerning the 2.0-liter vehicles. On June 28, 2016,
the United States filed a proposed consent decree for this civil
enforcement action, and the PSC filed a settlement agreement
for preliminary approval in the class action. The consent
decree established a program by which VW would buy back,
permit the termination of leases of, or perform modifications
on the emissions systems of all affected vehicles.5 VW would
also pay $2.7 billion into a “mitigation trust” to offset the
increased NOx emissions caused by the affected vehicles, and
pay another $2 billion to support public awareness of zero-
emissions vehicles. For the buyback-lease termination-
modification program, the consent decree set a participation
target of 85% of the affected vehicles; for each percentage
point below 85%, VW had to pay additional funds into the
mitigation trust. The terms of the class action settlement
largely overlapped with the terms of the consent decree
between VW and the government and also with a separate
consent order filed by the Federal Trade Commission.
Pursuant to 28 C.F.R. § 50.7(b), notice of the partial consent
decree appeared in the Federal Register on July 6, 2016, and
4
In addition to the United States, the Federal Trade Commission
(FTC), represented by separate counsel, brought claims against VW for
violations of the FTC Act, 15 U.S.C. §§ 45, 53, and California sued VW
for violations of state and federal law. The FTC and California actions
were consolidated into the MDL proceeding. Throughout the opinion,
“the government” refers to the United States unless otherwise noted.
5
The consent decree, class action settlement, and FTC consent order
covered 2.0-liter diesel vehicles. A separate settlement was reached with
respect to 3.0-liter diesel vehicles.
12 IN RE VOLKSWAGEN LITIGATION
a 30-day public comment period ensued. See Notice of
Lodging of Proposed Partial Consent Decree Under the Clean
Air Act, 81 Fed. Reg. 44,051 (July 6, 2016).
C. Fleshman’s attempt to intervene
While settlement talks were well underway in the cases
proceeding in California, Fleshman filed suit against VW in
the Circuit Court of Campbell County, Virginia.6 At the time
Fleshman filed suit, he owned a 2012 model year light diesel
Jetta.
Later, when the settlement talks were close to fruition,
Fleshman moved to intervene in the class action, “to object to
the proposed Consumer Class Action Settlement Agreement
and Release.” The district court refused to allow the
intervention.
Undeterred, Fleshman moved a week later to intervene in
the government’s enforcement action. He argued that the
consent decree “violate[d] Federal and Virginia law” because
it did not require rescission of sale for all affected vehicles;
instead, it permitted vehicle owners and lessees to keep their
unmodified vehicles if they wished. Fleshman also alleged
that Virginia’s SIP prohibited the owners of affected vehicles
from driving them, so the buyback should have been
mandatory.
The specific SIP provision Fleshman relied upon reads in
full: “No motor vehicle or engine shall be operated with the
6
See Fleshman v. Volkswagen Grp. of Am., Inc., No. 6:16-cv-00021-
GEC (W.D. Va. May 2, 2016), ECF No. 1-1. The case was removed to
federal court and then remanded back to state court. See id., ECF No. 17.
IN RE VOLKSWAGEN LITIGATION 13
motor vehicle pollution control system or device removed or
otherwise rendered inoperable.” 9 Va. Admin. Code § 5-40-
5670(A)(3). Under Fleshman’s reading, this SIP provision
prohibited vehicle owners from driving unmodified affected
vehicles. Fleshman maintained in his intervention motion
that the EPA’s statement of September 18, 2015, advising
that “the [affected] cars remain[ed] legal to drive and resell”
was inconsistent with the Virginia SIP. Fleshman sought
intervention to “protect his interest as a Virginian[] in
enforcing the laws of Virginia . . . incorporated into the Clean
Air Act by way of Virginia’s [SIP].”7 He argued that the
Clean Air Act’s citizen-suit provision provided him with a
statutory right to intervene, presumably pursuant to Federal
Rule of Civil Procedure 24(a)(1).8 Fleshman further
contended that he had a protectable interest in the
enforcement of Virginia’s SIP not adequately protected by the
parties to the litigation, presumably invoking Rule 24(a)(2).
The government observed in its opposition papers that
Fleshman had not appended a complaint to his motion to
intervene. In response, Fleshman attached one to his reply
brief, and shortly thereafter he filed a First Amended
7
See Cal. Dump Truck Owners Ass’n v. Nichols, 784 F.3d 500, 503
(9th Cir. 2015) (“Once approved by the EPA, a SIP becomes federal law
and must be carried out by the state.”). Fleshman alleged that the consent
decree also violated the SIPs of more than a dozen other states and the
District of Columbia.
8
Rule 24(a) provides: “On timely motion, the court must permit
anyone to intervene who: (1) is given an unconditional right to intervene
by a federal statute; or (2) claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a).
14 IN RE VOLKSWAGEN LITIGATION
Proposed Complaint-in-Intervention.9 The complaint
consisted largely of allegations that the EPA was not
adequately prosecuting the action against VW.10 In his prayer
for relief, Fleshman sought various declarations and orders
against the EPA (e.g., “[f]ind and order that the EPA cannot
propose and support a monetary penalty which is an incentive
to violate the Clean Air Act”); none of the requested relief
was directed at Volkswagen.11
The district court denied Fleshman’s motion to intervene
in this civil enforcement action. The court held that the Clean
Air Act’s citizen-suit provision permits intervention of right
only when the intervenor seeks to enforce the same “standard,
limitation, or order” as the government does in its action.
Because Fleshman sought to enforce Virginia’s SIP—not the
same “standard, limitation, or order” as the Clean Air Act
provisions underlying the government’s complaint—the Act
did not permit him to intervene as a matter of right.
9
For simplicity, we refer to Fleshman’s First Amended Proposed
Complaint-in-Intervention as “the complaint” or “Fleshman Compl.”
except when necessary to distinguish it from the first proposed complaint-
in-intervention.
10
The two main sections of the complaint are titled “The
Administrator and the EPA Have Not Diligently Prosecuted the Clean Air
Act” and “The Specific Failures of the Administrator to Enforce the Clean
Air Act.”
11
Fleshman did not bring his suit as a class action.
IN RE VOLKSWAGEN LITIGATION 15
Shortly thereafter, the district court entered the proposed
consent decree in the government enforcement action.12
Fleshman appeals the denial of his motion to intervene.
III
Under Rule 24, a stranger to a lawsuit may intervene “of
right” where (1) a federal statute gives the would-be
intervenor an “unconditional right” to intervene in the suit, or
(2) letting the lawsuit proceed without that person could
imperil some cognizable interest of his. Fed. R. Civ. P. 24(a).
“Rule 24(a) is construed broadly, in favor of the applicants
for intervention.” Scotts Valley Band of Pomo Indians v.
United States, 921 F.2d 924, 926 (9th Cir. 1990). Fleshman
argues that both subsections of Rule 24(a) entitle him to
intervene. We address each subsection in turn.
A. Intervention under Rule 24(a)(1)
Fleshman first argues that he may intervene in the
government’s action by grace of the Clean Air Act’s citizen-
suit provision, § 7604. The issue is whether that provision
grants him an “unconditional right” to intervene. Fed. R. Civ.
P. 24(a)(1). It does not.
i. Scope of intervention under the Clean Air Act
The Clean Air Act entitles any person to sue for a
violation of “an emission standard or limitation under this
chapter” or “an order issued by the Administrator or a State
12
The district court approved the class action settlement on the same
day. The district court’s denial of Fleshman’s objections to the class
action settlement are the subject of a separate appeal.
16 IN RE VOLKSWAGEN LITIGATION
with respect to such a standard or limitation.” § 7604(a)(1).
A citizen’s right to sue under the Act has limitations,
however:
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to 60 days after the plaintiff has
given notice of the violation (i) to the
Administrator, (ii) to the State in which
the violation occurs, and (iii) to any
alleged violator of the standard, limitation,
or order, or
(B) if the Administrator or State has
commenced and is diligently prosecuting
a civil action in a court of the United
States or a State to require compliance
with the standard, limitation, or order, but
in any such action in a court of the United
States any person may intervene as a
matter of right.
§ 7604(b)(1). This tripartite structure for citizen suits—a
right of action, qualified by a notice requirement and a
“diligent prosecution” bar, which in turn is leavened by a
right to intervene—is replicated in a host of other federal
IN RE VOLKSWAGEN LITIGATION 17
environmental statutes.13 See United States v. Hooker Chems.
& Plastics Corp., 749 F.2d 968, 977–78 (2d Cir. 1984).
Our threshold question in deciding whether Fleshman had
a right to intervene in this action is whether a citizen who is
not barred from bringing his own citizen suit by a diligently
prosecuted government enforcement action may nonetheless
intervene in that government action. After examining the
parameters of § 7604(b)(1)(B)’s diligent prosecution bar, we
hold that it circumscribes a citizen’s right to intervene in an
enforcement action under that same provision. That is, a
citizen who retains the right to file suit on his own, despite a
government enforcement action, has no statutory right to
intervene in that action.14
Section 7604(b)’s two subparts work together to delimit
citizen suits against alleged violators of the Act. First, before
filing suit, a plaintiff must give sixty days’ notice to the EPA,
the relevant State, and the alleged violator. § 7604(b)(1)(A).
Second, no citizen suit may be commenced if the EPA or a
13
See Clean Water Act, 33 U.S.C. § 1365(a)–(b); Resource
Conservation and Recovery Act, 42 U.S.C. § 6972(a)–(b); Safe Drinking
Water Act, 42 U.S.C. § 300j-8(a)–(b); Surface Mining Control and
Reclamation Act, 30 U.S.C. § 1270(a)–(b); cf. Endangered Species Act,
16 U.S.C. § 1540(g)(2)(A)(iii) (stating a diligent prosecution bar, but
without a corresponding right to intervene).
14
This circuit has not yet considered the contours of the Act’s
intervention provision. United States v. Stone Container Corp., 196 F.3d
1066, 1069 (9th Cir. 1999), held that § 7604(d) of the Act did not entitle
the citizen plaintiffs, who had intervened in a government enforcement
action under § 7604(b)(1)(B), to attorneys’ fees, because such an action
was not “brought pursuant to subsection (a) [the citizen-suit provision] of
this section.” § 7604(d). We did not discuss, however, the scope of the
right to intervene under § 7604(b)(1)(B).
18 IN RE VOLKSWAGEN LITIGATION
state is already diligently litigating an action “to require
compliance with the standard, limitation, or order.”
§ 7604(b)(1)(B). “The time between notice and filing of the
action should give the administrative enforcement office an
opportunity to act on the alleged violation.” S. Rep. No. 91-
1196, at 37 (1970) (report of the Senate Committee on Public
Works). “If the Administrator or the State commences
enforcement action within that 60-day period, the citizen suit
is barred, presumably because governmental action has
rendered it unnecessary.” Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 59 (1987)
(discussing the citizen-suit and intervention provisions of the
Clean Water Act). Taken as a whole, the statutory
architecture indicates that “the citizen suit is meant to
supplement rather than to supplant governmental action.” Id.
at 60.
But not every citizen suit is verboten once the government
files suit. The diligent prosecution bar prevents a citizen
from suing under § 7604(a)(1) if the government is
prosecuting an action “to require compliance with the
standard, limitation, or order.” § 7604(b)(1)(B) (emphasis
added). “[T]he standard, limitation, or order” in (b)(1)(B)
refers back to the “emission standard or limitation” or “order
issued . . . with respect to such a standard or limitation”
described in the citizen-suit provision, § 7604(a)(1), the
violation of which any person may sue to enjoin, “[e]xcept as
provided in subsection (b).” Id. The explicit textual cross-
references between subsections (a) and (b), and the use of the
definite article (“the standard, limitation, or order”),15 signify
15
“[T]he definite article ‘the’ particularizes the subject spoken of,
suggesting that Congress meant to refer to a single object . . . .”
Hernandez v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1074 (9th
IN RE VOLKSWAGEN LITIGATION 19
with precision that the diligent prosecution bar forecloses
only citizen suits that seek to enforce the same “standard,
limitation, or order” as the government enforcement action.
See Hooker Chems., 749 F.2d at 978.16 A person suing to
enforce a different “standard, limitation, or order” with regard
to certain emissions from that invoked by the government in
its enforcement action is not barred from doing so by
§ 7604(b).
The diligent prosecution bar in turn defines the right of
intervention granted by § 7604(b)(1)(B). No citizen suit for
a violation of a “standard, limitation, or order” may be
commenced in the face of an enforcement action “to require
compliance with the [same] standard, limitation, or order, but
in any such action . . . any person may intervene as a matter
of right.” Id. (emphasis added). Once again, the text and
context are plain: a person may “intervene as a matter of
right” in an enforcement action—“such action”—only if that
action has barred the person from bringing his own citizen
suit under § 7604(a)(1). The word “such” restricts the actions
in which a person may intervene to those mentioned in the
preceding clause—that is, diligently prosecuted enforcement
actions that bar a citizen suit under subsection (a)(1). The
connective “but” sets the grant of intervention in opposition
Cir. 2016) (internal quotation marks omitted) (quoting The, Black’s Law
Dictionary (4th ed. 1968)).
16
In the past, we have described the bar in broad terms as “expressly
preclud[ing] commencement of suits . . . when the United States has
already commenced and is diligently prosecuting an action asserting the
same claims.” Stone Container Corp., 196 F.3d at 1068 (emphasis
added). Because the statute speaks of a “standard, limitation, or order”
rather than a “claim,” we avoid importing the latter term into our more
specific analysis.
20 IN RE VOLKSWAGEN LITIGATION
to the diligent prosecution bar: you can’t bring your own suit,
but you’re allowed to intervene in this one. Lastly, “[t]he
right to intervene is conferred in the same sentence that limits
the rights of citizens who would otherwise bring private
enforcement actions, which suggests that Congress intended
to confer that right only on those particular citizens.” United
States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 837–38
(8th Cir. 2009) (construing the scope of the Clean Water
Act’s analogous right of intervention).
The phrase “any person” in the intervention clause might
appear to broaden the grant of intervention beyond simply
those “citizens who would otherwise bring private
enforcement actions,” but are precluded from doing so by the
government’s action. Id. “[U]se of the word ‘any’ will
sometimes indicate that Congress intended particular
statutory text to sweep broadly.” Nat’l Ass’n of Mfrs. v.
Dep’t of Def., 138 S. Ct. 617, 629 (2018). But whether “any”
has that import in a particular statute “necessarily depends on
the statutory context.” Id. Here, that context—and the other
words of the provision—cabin “any person” to those whose
suits were barred by the diligent prosecution bar.
Stone Container Corp. demonstrates how § 7604’s pieces
fit together. 196 F.3d at 1067. In that case, the United States
filed suit against the defendant for violations of the Clean Air
Act, after receiving notice under § 7604(b)(1)(A) of the
private plaintiff’s intent to sue. Id. The private plaintiff then
filed its own 21-count suit against the defendant. Three of the
21 counts “mirrored” counts in the government’s complaint.
Those “duplicative” counts were dismissed by the plaintiff
“subject to intervention in the United States enforcement
action.” Id. The plaintiff then negotiated a separate consent
IN RE VOLKSWAGEN LITIGATION 21
decree for the remaining, non-duplicative—and non-
barred—claims in its complaint. See id. at 1067–68.
Every circuit to consider the Clean Air Act’s right of
intervention—or the identically worded provisions in other
environmental statutes, see supra note 13—has reached the
same result we do. For example, the Second Circuit held, as
do we, that “[i]ntervention is limited to government initiated
actions that could have been brought by the individual but for
the government action.” Hooker Chems., 749 F.2d at 978.17
Similarly, the Third Circuit recognized that “[s]ection
7604(b) . . . does not establish a right to intervene
independent from the other provisions in § 7604.” Del.
Valley Citizens’ Council for Clean Air v. Pennsylvania,
674 F.2d 970, 972–73 (3d Cir. 1982).
In short, a party may intervene as a matter of right in a
Clean Air Act enforcement action only if he is barred under
the Act by that enforcement action from maintaining his own
suit to remedy a violation of the “standard, limitation, or
order” at issue.
17
See also Metro. St. Louis Sewer Dist., 569 F.3d at 838 (holding that
under the Clean Water Act, “only a citizen whose suit has been displaced
by the government action is entitled to intervene”); United States v. City
of New York, 198 F.3d 360, 364 (2d Cir. 1999) (holding that the Safe
Drinking Water Act “authorizes intervention as of right by private parties
in suits that could have been brought by the parties but for the fact that
they are being pursued by the United States or a state”).
22 IN RE VOLKSWAGEN LITIGATION
ii. The government was not suing to enforce a
“standard, limitation, or order” within the
meaning of the Act
Our next question, then, is whether Fleshman aimed to
enjoin violations of one of the “standard[s], limitation[s], or
order[s]” underlying the government’s enforcement action
against Volkswagen. If so, the diligent prosecution bar
precluded his action and he was entitled to intervene “as a
matter of right” in the enforcement action under
§ 7604(b)(1)(B) and Rule 24(a)(1). If not, then he had no
statutory right to intervene in the government’s case.
The government brought suit to enjoin four distinct
violations of Section 203 of the Clean Air Act, 42 U.S.C.
§ 7522. It alleged that VW violated the Act by selling
vehicles not covered by certificates of conformity, equipping
those vehicles with unlawful “defeat devices” and auxiliary
emission control devices, and failing to report those devices
in its COC applications.18 See supra pages 9–10. For relief,
18
Section 7522(a) provides: “The following acts and the causing
thereof are prohibited—
(1) in the case of a manufacturer of new motor vehicles
or new motor vehicle engines for distribution in
commerce, the sale, or the offering for sale, or the
introduction, or delivery for introduction, into
commerce, or (in the case of any person, except as
provided by regulation of the Administrator), the
importation into the United States, of any new motor
vehicle or new motor vehicle engine, manufactured
after the effective date of regulations under this part
which are applicable to such vehicle or engine unless
such vehicle or engine is covered by a certificate of
conformity . . . .
IN RE VOLKSWAGEN LITIGATION 23
the government sought an injunction, mitigation of excess
NOx emissions, and civil penalties.
The prohibitions contained in § 7522 do not appear to be
“emission standard[s] or limitation[s]” or “orders issued . . .
with respect to” such standards or limitations within the
meaning of § 7604(a)(1). Section 7604(f) explains that the
term “emission standard or limitation,” for purposes of
the citizen-suit provision, covers several broad categories
of regulatory requirements, including—somewhat
unhelpfully—“emission standard[s]” and “emission
(2)(A) for any person to fail or refuse to permit access
to or copying of records or to fail to make reports or
provide information required under section 7542 of this
title; . . .
(3)(A) for any person to remove or render inoperative
any device or element of design installed on or in a
motor vehicle or motor vehicle engine in compliance
with regulations under this subchapter prior to its sale
and delivery to the ultimate purchaser, or for any person
knowingly to remove or render inoperative any such
device or element of design after such sale and delivery
to the ultimate purchaser; or
(B) for any person to manufacture or sell, or offer to
sell, or install, any part or component intended for use
with, or as part of, any motor vehicle or motor vehicle
engine, where a principal effect of the part or
component is to bypass, defeat, or render inoperative
any device or element of design installed on or in a
motor vehicle or motor vehicle engine in compliance
with regulations under this subchapter . . . .”
24 IN RE VOLKSWAGEN LITIGATION
limitation[s].”19 Section 7602, which defines terms used
throughout the Clean Air Act, more concretely defines
“emission limitation” and “emission standard” to mean “a
requirement established by the State or the Administrator
which limits the quantity, rate, or concentration of emissions
of air pollutants on a continuous basis, including any
requirement relating to the operation or maintenance of a
source to assure continuous emission reduction, and any
design, equipment, work practice or operational standard
promulgated under this chapter.” § 7602(k). Neither the
§ 7602(k) definition nor the § 7604(f) list of categories of
“emission standard[s]” and “emission limitation[s]”
encompasses the generic statutory prohibitions in § 7522.
For an example of an “emission standard,” consider
40 C.F.R. § 86.1811-04. That regulation establishes
permissible emission levels of nitrogen oxide (NOx) for
“light-duty vehicles” like the vehicles at issue in this case.
See id. § 81.1811-04(c) (“Exhaust emissions from Tier 2
vehicles must not exceed the standards in Table S04–1 of this
section at full useful life . . . .”). Unlike the statutory
prohibitions in § 7522, which were enacted by Congress, the
regulation is “a requirement established by . . . the
Administrator which limits the quantity, rate, or concentration
of emissions of air pollutants on a continuous basis.”
§ 7602(k).
19
Examples of an “emission standard or limitation” include “a
schedule or timetable of compliance, emission limitation, standard of
performance or emission standard,” “a control or prohibition respecting
a motor vehicle fuel or fuel additive,” requirements or conditions of
permits relating to other non-motor-vehicle related portions of the Clean
Air Act, and—relevant later—regulatory requirements promulgated
“under any applicable State implementation plan approved by the [EPA].”
§ 7604(f).
IN RE VOLKSWAGEN LITIGATION 25
The United States did not sue VW for violations of
40 C.F.R. § 86.1811-04—that is, of an “emission standard or
limitation” as encompassed by § 7604(a)(1)—nor for
violations of any other standard or limitation promulgated
under § 7521.20 Instead, the United States sued VW for
violations of statutory provisions that are not, and do not
incorporate, “standard[s], limitation[s], or order[s]” within the
meaning of § 7604(a)(1). The diligent prosecution bar
applies only when the government is enforcing a “standard or
limitation under this chapter” or an “order . . . with respect to
such a standard or limitation.” § 7604(a)(1). Fleshman’s
claims were thus not precluded by that bar, and he was free
to bring his own citizen suit alleging them. And because a
citizen has a statutory right to intervene in a government
enforcement action under the Clean Air Act only if precluded
by the diligent prosecution bar from bringing his own suit,
Fleshman had no right to intervene here.
iii. Fleshman sought to enforce the Virginia SIP, not
the requirements of § 7522
There is an alternative reason Fleshman had no statutory
right to intervene in this action. Even if § 7522’s statutory
prohibitions were “standard[s], limitation[s], or order[s]” that
would foreclose, through § 7604(b)(1)(B), a citizen suit, this
government enforcement action would not bar Fleshman from
litigating the claims in his proposed suit. Properly viewed,
20
Section 7521 directs the EPA administrator to prescribe by
regulation “standards applicable to the emission of any air pollutant from
any class or classes of new motor vehicles or new motor vehicle engines,
which in his judgment cause, or contribute to, air pollution which may
reasonably be anticipated to endanger public health or welfare.”
26 IN RE VOLKSWAGEN LITIGATION
Fleshman’s claims are not predicated on any § 7522
violations.
Fleshman’s first proposed complaint-in-intervention
focused entirely on the EPA’s inadequate enforcement of
state SIPs. He sought declaratory relief to remedy the
inadequacy and unlawfulness of the consent decree flowing
from its inattention to state SIPs. In particular, Fleshman’s
first complaint—which does not refer to § 7522 at
all—alleged a violation of a provision of Virginia’s SIP that
prohibits the operation of cars whose “pollution control
system[s] or device[s]” had been “removed or otherwise
rendered inoperable.” 9 Va. Admin. Code § 5-40-
5670(A)(3).
The government’s enforcement action did not allege that
VW had not complied with Virginia’s (or any state’s) SIP, or
seek relief connected with SIP compliance. That, indeed, was
Fleshman’s central gripe in his original intervention
complaint. Because Fleshman’s original complaint alleged
violations entirely distinct from those the government
identified, Fleshman could have proceeded with his own
citizen suit. § 7604(b)(1)(B); see also § 7604(f)(4) (private
plaintiffs may sue to enforce a “standard, limitation, or
scheduled established under . . . any applicable State
implementation plan approved by the [EPA]”). He therefore
had no statutory right to intervene in the government’s action
based on his original complaint-in-intervention.
In his amended proposed complaint-in-intervention,
Fleshman emphasized somewhat different purported
violations—namely, the EPA’s failure to demand that all of
Volkswagen’s non-conforming cars be removed from the
road, all sales be rescinded, and all purchase prices be
IN RE VOLKSWAGEN LITIGATION 27
refunded, relief that he argues was mandated by the Clean Air
Act. Fleshman Compl. at 11. Like the earlier complaint,
however, the second one did not identify any of the
subsections of § 7522 as the source of the violations alleged
or the relief sought.21 In fact, Fleshman’s proposed amended
complaint-in-intervention does not actually set forth any
claims or causes of action; it contains many paragraphs of
allegations followed by a request for relief.22 If anything,
Fleshman’s refrain that the EPA failed to enforce the
“mandatory, non-discretionary” requirements of the Clean
Air Act, Fleshman Compl. at 2–8, indicates that his claims
are, in reality, claims against the EPA under a different
provision of the Act from § 7522. See § 7604(a)(2) (“[A]ny
person may commence a civil action on his own behalf . . .
against the Administrator [of the EPA] where there is alleged
a failure of the Administrator to perform any act or duty
under this chapter which is not discretionary . . . .” (emphasis
added)).
21
Fleshman’s complaint does allude to violations of § 7522. See
Fleshman Compl. at 2 ¶¶ 4–6, 6 ¶ 15A, 8 ¶ 15C–D, 11. But the references
to § 7522 are intermingled with allegations that VW’s conduct, and the
consent decree itself, also violated §§ 7410, 7413, 7522(a)(4)(D), 7523,
and 7541—provisions of the Act that did not underpin the government’s
enforcement action against VW. What is clear is that Fleshman’s
complaint is not founded upon violations of § 7522, notwithstanding that
he mentions the section at various points in his complaint.
22
Fleshman’s blanket attempt to incorporate by reference all of the
allegations in the government’s complaint does not transform his suit into
one alleging violations of the same “standard, limitation, or order” as the
government. See Fleshman Compl. at 1 ¶1. The complaint incorporates
the government’s allegations, not its claims or causes of action. Mirroring
the allegations in the government’s complaint does not change the basic
thrust of Fleshman’s complaint.
28 IN RE VOLKSWAGEN LITIGATION
In sum, the government’s enforcement action did not bar
Fleshman’s suit under the diligent prosecution bar,
§ 7604(b)(1)(B). The statutory provisions the United States
sued to enforce—§ 7522—are not “standard[s], limitation[s],
or order[s]” that would preclude a citizen suit under
§ 7604(a)(1). Even if they were, Fleshman’s proposed
complaints-in-intervention demonstrate that he was not
seeking to enforce the provisions of § 7522 invoked by the
government. For both reasons, Fleshman could have filed his
own suit against Volkswagen or the EPA to enforce
Virginia’s SIP. Ergo, he was not entitled to intervene in the
government’s action. See § 7604(b)(1)(B). And because the
Clean Air Act did not grant Fleshman an “unconditional right
to intervene,” he was not entitled to do so under Rule
24(a)(1).
B. Intervention under Rule 24(a)(2)
Fleshman argues—albeit indistinctly—that he is entitled
to intervene of right under Rule 24(a)(2) to protect his interest
in the proper enforcement of the Clean Air Act and Virginia’s
SIP. Fleshman, however, lacks standing for the relief in his
complaint-in-intervention that goes beyond what the United
States sought in its suit, and so may not intervene of right.
See Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,
1651 (2017).23
23
Under Rule 24(a)(2), a court “must permit anyone to intervene who
. . . claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as
a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.” We
assume, because no party has argued otherwise, that Fleshman could meet
the “impairment” prong under 24(a)(2). But it is not at all clear that he
could. Fleshman’s ability under § 7604(a)(1) to maintain a separate
IN RE VOLKSWAGEN LITIGATION 29
“[A]n intervenor of right must have Article III standing in
order to pursue relief that is different from that which is
sought by a party with standing.” Id. The relief Fleshman
seeks is completely different from that sought by the
government in its action.
The United States asked the court permanently to enjoin
Volkswagen’s violations of § 7522, order Volkswagen to
mitigate the excess NOx emissions from its vehicles, and
assess civil penalties against Volkswagen for each violation
of the Act. By contrast, Fleshman asked the court to:
(1) declare that enforcement of § 7522
requires the rescission of the sale of each of
the hundreds of thousands of affected
vehicles;
(2) declare that the EPA had no authority to
“annul or repeal” the SIPs of various states, or
to “impair or impede” the enforcement of
SIPs, by “promoting and endorsing” an
allegedly deficient and unlawful consent
decree;
lawsuit against Volkswagen, or the EPA, to enforce the Clean Air Act
would seem to defeat any argument that adjudication of the government’s
enforcement action without his participation will impair his interests. See
United States v. City of Los Angeles, 288 F.3d 391, 402 (9th Cir. 2002)
(considering it “doubtful” that the proposed intervenors’ interests would
be impaired where “[t]he litigation d[id] not prevent any individual from
initiating suit” to enjoin the defendants’ unlawful conduct). In practice,
the denial of intervention under § 7604(b)(1)(B) and Rule 24(a)(1) might
effectively preclude would-be intervenors from arguing they are
alternatively entitled to intervene under Rule 24(a)(2).
30 IN RE VOLKSWAGEN LITIGATION
(3) declare that §§ 7413 and 7541 require the
EPA to notify other owners and lessees that it
is illegal to operate their vehicles in the
United States, and to notify the States of
“widespread” violations of various provisions
of the Clean Air Act and numerous SIPs;
(4) and declare that the EPA could not
“support a monetary penalty which is an
incentive to violate the Clean Air Act.”24
In short, Fleshman desires a series of declarations that the
Clean Air Act requires the United States to seek a full-
rescission remedy, and, conversely, prohibits it from pursuing
anything short of that in a settlement with VW. For him, only
the removal of all affected cars from the road will ensure that
neither he nor the “many thousands of innocent owners and
lessees,” Fleshman Compl. at 6 ¶ 14, will later face liability
for driving their allegedly SIP- and Clean Air Act-
noncompliant cars.
But Fleshman lacks standing for such sweeping relief.
“[T]he standing inquiry requires careful judicial examination
of a complaint’s allegations to ascertain whether the
particular plaintiff is entitled to an adjudication of the
particular claims asserted.” Or. Prescription Drug
Monitoring Program v. DEA, 860 F.3d 1228, 1233 (9th Cir.
2017) (citation omitted). For Fleshman to have standing for
24
Although Fleshman’s prayer for relief asks the court to “[f]ind and
order” the relief listed above, which suggests affirmative injunctive relief,
each item of specified relief seeks only a declaration that the Clean Air
Act requires the EPA to do specific things, and prohibits it from doing
others.
IN RE VOLKSWAGEN LITIGATION 31
these claims for relief, he must show that the threatened harm
to him—caused by the government’s failure to enforce the
Clean Air Act appropriately—is “certainly impending” or that
“there is a substantial risk that the harm will occur,” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)
(internal quotation marks and citations omitted), and that only
rescission of the sale of every affected vehicle will remedy
that harm.
Assuming that Fleshman is correct that the letter of the
Virginia SIP would prohibit him from driving an unmodified
vehicle in the future, he has myriad ways to avoid potential
liability under the SIP. He is aware of that risk,
notwithstanding the theoretical ignorance of other owners or
lessees. And he could participate in the class action
settlement, by choosing to have Volkswagen either buy back
his car or perform an approved emissions modification on it.25
Moreover, Fleshman’s arguments that the EPA or any
state would enforce a SIP against him for continuing to drive
his car are entirely speculative. There are no plausible
allegations, nor reason to believe from the record, that the
EPA or any state will attempt to subject operators of
unmodified Volkswagen vehicles to liability. The available
evidence indicates the opposite—that “the threat of
enforcement” is “chimerical,” rather than “credib[le]” and
25
Fleshman has until September 1, 2018, to file a claim for benefits
under the settlement. See Volkswagen/Audi/Porsche Diesel Emissions
Settlement Program, Volkswagen, https://www.vwcourtsettlement.com/
(last visited June 2, 2018). After briefing was completed in this appeal,
the EPA and CARB approved an emissions modification program for
“Generation 1” vehicles, including Fleshman’s 2012 Jetta.
32 IN RE VOLKSWAGEN LITIGATION
“substantial.”26 Susan B. Anthony List, 134 S. Ct. at 2342,
2345 (quoting Steffel v. Thompson, 415 U.S. 452, 459
(1974)). Fleshman’s fears of enforcement thus “rest on mere
conjecture about possible governmental actions.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 420 (2013) (holding that
putative injuries depending on the plaintiffs’ surmise about
government surveillance activities did not give rise to
standing); cf. Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir.
2010) (“[C]laims of future harm lack credibility when . . . the
enforcing authority has disavowed the applicability of the
challenged law to the plaintiffs.”).
Further, and critically, Fleshman’s potential future
liability for driving his own car does not entitle him to seek,
as he does, rescission of all the sales of the affected cars,
including those belonging to hundreds of thousands of other
people. His own awareness of the theoretical future
enforcement problem, and the severe disjuncture between the
injuries to himself he asserts and the relief he seeks,
underscore that he is, primarily, asserting potential harms to
third parties. See Fleshman Compl. at 5 ¶ 14 (“[After the
settlement,] the owners and lessees [of the affected vehicles]
will learn for the first time their vehicles are illegal to use, but
26
See Frequent Questions about Volkswagen Violations, U.S. Envtl.
Protection Agency, https://www.epa.gov/vw/frequent-questions-about-
volkswagen-violations (last visited June 2, 2018) (“Will EPA take or
confiscate my vehicle? Absolutely not. EPA will not confiscate your
vehicle or require you to stop driving.”); Press Release, Va. Office of the
Attorney Gen., Herring Announces Compensation for Virginia
Consumers Under Settlements with Volkswagen over Emissions Fraud
(June 28, 2016), http://ag.virginia.gov/media-center/news-releases/773-
june-28-2016-herring-announces-compensation-for-virginia-consumers-
under-settlements-withvolkswagen-over-emissions-fraud (praising the
settlements and their value to Virginians).
IN RE VOLKSWAGEN LITIGATION 33
will have already released all claims against the defendants
responsible for the illegality.”).27 Absent some exception not
here applicable, Fleshman “must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal
rights or interests” of other owners or lessees. Ray Charles
Found. v. Robinson, 795 F.3d 1109, 1118 (9th Cir. 2015)
(quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)); see also
Mills v. United States, 742 F.3d 400, 407 (9th Cir. 2014)
(describing when third-party standing is permitted).
In short, Fleshman has no standing for the relief he seeks
that the government does not, and so may not intervene as of
right under Rule 24(a)(2). See Town of Chester, 137 S. Ct. at
1651.
IV
The Clean Air Act did not grant Fleshman an
“unconditional right” to intervene in the government’s suit.
Fed. R. Civ. P. 24(a)(1). The United States was not seeking
to enforce any “standard, limitation, or order” as those terms
are used in the Clean Air Act, and in any event, Fleshman is
seeking to enforce different purported requirements of the
Act. As the government’s action therefore did not bar
Fleshman from suing on his own, he is not entitled to
intervene. § 7604(b)(1)(B). Rule 24(a)(2) is no help to
Fleshman, because he lacks standing to pursue the relief in
27
See also Fleshman Compl. at 6 ¶ 14 (alleging that the EPA’s
statements that the affected vehicles were legal to drive “set a trap for
many thousands of innocent owners and lessees”); id. at 10 (requesting
that the court order the EPA to “notify each owner and lessee of a Dirty
Diesel vehicle that it is illegal to use their vehicles in the United States”).
34 IN RE VOLKSWAGEN LITIGATION
his complaint. Accordingly, the district court’s judgment is
AFFIRMED.