## Facts

- Public-health and environmental groups brought a Clean Air Act citizen suit against the EPA Administrator to compel EPA to perform the Act’s nondiscretionary duty to periodically review and, if appropriate, revise the ozone National Ambient Air Quality Standards (NAAQS).
- Sixty-seven electric utilities and three industry associations sought to intervene as defendants, asserting that an order compelling review could lead to a stricter ozone standard and increased compliance costs for their fossil-fuel power plants.
- The utilities moved to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) or, alternatively, permissively under Rule 24(b), offering defenses including failure to state a claim and lack of subject-matter jurisdiction.
- The district court denied intervention, finding the utilities’ interests would not be practically impaired by their absence and were adequately represented by EPA; it also denied permissive intervention based on case-management concerns.
- The utilities appealed the denial of intervention to the Second Circuit.

## Issues

1. Whether the utilities were entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2), including whether the action’s disposition would practically impair their interests and whether EPA inadequately represented those interests.
2. Whether the district court abused its discretion in denying permissive intervention under Fed. R. Civ. P. 24(b).

## Decision

- The Second Circuit affirmed the denial of intervention as of right.
- The court assumed timeliness and, without deciding, assumed the utilities had a sufficient interest, but held they failed to show practical impairment from nonparty status.
- The court held the utilities also failed to rebut the presumption that EPA adequately represented their interests because EPA and the utilities shared the same objective: defeating the suit’s attempt to compel immediate review/revision activity.
- The Second Circuit affirmed the denial of permissive intervention, finding no abuse of discretion where intervention by numerous utilities risked complicating and delaying the litigation.

## Legal Principles

- Intervention as of right under Rule 24(a)(2) requires a timely motion, a cognizable interest related to the action, a showing that disposition may practically impair protection of that interest, and a showing that existing parties inadequately represent the interest.
- Where the existing party is a government agency pursuing the same litigation objective as the proposed intervenor, courts apply a presumption of adequate representation; differences in motive or general policy preference are insufficient without concrete divergence in objectives or litigation approach.
- In suits seeking to compel an agency’s performance of a procedural or timing duty, practical impairment is less likely when the proposed intervenor retains later opportunities to participate in agency rulemaking and to seek judicial review of any final rule.
- Permissive intervention under Rule 24(b) is discretionary; courts may deny it to avoid undue delay, prejudice, or expansion of the litigation beyond the core issues.

## Conclusion

The Second Circuit held that regulated utilities were not entitled to intervene in a Clean Air Act citizen suit aimed at compelling EPA to perform a statutory review duty because the suit did not practically impair the utilities’ ability to protect their interests and EPA was presumed to adequately represent the shared objective of opposing compelled agency action; the court also upheld denial of permissive intervention based on delay and complexity concerns.


American Lung Ass’n v. Reilly, 962 F.2d 258 (2d Cir. 1992)