FRIENDLY, Circuit Judge.
The appellants are four environmental organizations. Two, the Ecumenical Task Force ("ETF") and Niagara Environmental Action ("NEA") are New York organizations; many members of ETF and all members of NEA are directly affected by industrial pollution of the Niagara River. The two others, Pollution Probe Foundation ("PPF") and Operation Clean Niagara ("OCN") are Canadian organizations; many members of PPF and all members of OCN live in the Niagara region of the Province of Ontario and are directly affected by pollution of the Niagara River both by itself and as it flows into Lake Ontario. The appeals are from an order of Chief Judge Curtin of the District Court for the Western District of New York denying the appellants' applications to intervene under F.R.Civ.P. 24(a). 101 F.R.D. 451. ETF, PPF and OCN appealed only insofar as the order denied intervention as of right under F.R.Civ.P. 24(a); NEA appealed from the denial both of intervention as of right under Rule 24(a) and of permissive intervention under Rule 24(b), but has not briefed the latter point, which we regard as waived.
The action concerns Hooker's use of an approximately four-acre landfill on the American bank of the Niagara River (the "S-area") to dispose of more than 70,000 tons of hazardous chemical wastes between 1947 and 1975. The complaint of the United States, as amended on June 18, 1980, alleged that migration from the S-Area of a number of dangerous chemicals, many of them carcinogenic, was contaminating the Niagara River and, in some cases, the public drinking water supplied by the Niagara Falls Drinking Water Treatment Plant (the "Plant"), which is located approximately 200 yards east of the S-area dump site. According to the allegations made in the complaint, the porous nature of the soil in the S-Area landfill permits toxic wastes dumped by Hooker to mix with shallow subsurface water and then "leach out" eastwards toward the Niagara River. The complaint alleged further that, given the nature of the soil in the vicinity of the S-area and the Plant, and the load-bearing capacity and age of the Plant's pipes, there is a high probability that some of the Plant's subsurface pipes would crack or leak within the next 50 years, with the additional consequent danger that Hooker's chemical wastes might directly enter the water supply in high enough concentration to cause "a human health disaster." The complaint alleged that Hooker's conduct created "an imminent and substantial endangerment to the health of persons" under § 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300i;
See Joint App. at 35-38.
The complaint of the State of New York alleged "on behalf of itself and as parens patriae on behalf of all residents and citizens of the State of New York" seven causes of action for public nuisance and three causes of action for violations of N.Y. Environmental Conservation Law §§ 17-0501, -0701, -0803. For relief the State sought a judgment directing Hooker to:
The State also sought compensatory and punitive damages, as well as civil penalties for the alleged violations of the Environmental Conservation Law. See Joint App. at 58-59.
Finally, the City filed cross-claims for relief, essentially borrowing allegations made by the United States and the State. Seven claims were alleged against Hooker for creating a "continuing public and private nuisance." In addition, the City alleged an eighth claim for statutory violations of §§ 17-0501, -0701, and -0803 of the N.Y. Environmental Conservation Law. The relief sought by the City included both the general and the specific. Like the State, the City sought a general mandatory injunction compelling Hooker to take "such remedial action as this Court shall find to be necessary, sufficient and feasible to completely and permanently abate the nuisance ...." Answer to Amended Complaint of United States and Cross-Claim of City of Niagara Falls, Prayer for Relief. In addition, like the United States, the City sought implementation of certain specific measures, including, inter alia, cleaning or closing of the intake system of the Plant, together with continued monitoring of it; installation of leachate collection systems; and cleaning and monitoring of the water distribution system. Finally, the City sought "damages for all injuries caused by the discharge of ... Hooker's chemical wastes," specifying no precise figure, and reimbursement and indemnification for all funds expended by the City in connection with Hooker's use of the S-area landfill. Id.
This action was one of four similar ones filed by the United States in December, 1979 against Hooker for allegedly polluting activities in the Niagara Falls area. All four cases were referred to Chief Judge Curtin. In early 1980, the United States and Hooker agreed to discuss settlement of the four cases. The first suit in which an agreement was reached involved what is called the Hyde Park Landfill. After discovery and pre-trial procedures, the parties to the Hyde Park litigation filed a settlement agreement with the court in January 1981; this was approved on April 30, 1982, after publication of the settlement, a period for notice and comment, hearings and extensive argument by the parties and numerous intervenors and amici.
In October 1980, following the conclusion of settlement meetings regarding the Hyde Park Landfill, Hooker commenced settlement negotiations with representatives of the United States, the State and the City concerning the S-area landfill; these proceeded continuously from that date for three years, involved over 100 meetings and were well-known to environmental groups.
On July 16, 1982, NEA moved to intervene as a plaintiff in this action. NEA claimed it was entitled to intervene as of right under both F.R.Civ.P. 24(a)(1) and (2)
In an order dated July 30, 1982, Judge Curtin set a briefing schedule and scheduled oral argument to consider whether NEA was entitled to intervene, and, if so, "the status to be accorded to the intervenors and ... the parameters of their intervention." Joint App. at 141. After the argument, the judge raised certain questions concerning the membership and actual functioning of NEA, and requested further information on these subjects. This was furnished in November, 1982 and the judge was later to express satisfaction with it; however, NEA's motion remained undecided.
On March 21, 1983, ETF, PPF and OCN filed a joint motion to intervene as plaintiffs pursuant to F.R.Civ.P. 24(a)(2) and (b). ETF's interest, like NEA's, derived from its members' exposure to allegedly contaminated water supplied by the Plant. PPF's interest related to the discovery of contaminants, allegedly emanating from the S-area landfill, downstream in the water column of Lake Ontario where they were alleged to pose an imminent danger, even in low concentrations, to the health and safety of PPF's members, who drink water and consume fish taken from Lake Ontario. OCN's interest consisted of the threat to those of its members who maintain bedrock wells in Niagara Falls, Ontario, from the possible movement of tar-like concentrated toxic chemicals from the bedrock under the Niagara River to the Canadian regional bedrock acquifer. Impairment of that interest was alleged to result from a possible stare decisis effect and from the possibility that improper remediation could "exacerbate existing migration by opening new and additional pathways for chemical movement from the landfill." The lack of adequate representation by existing plaintiffs was allegedly demonstrated by their allowing ETF members and others to continue to consume water processed through the Plant, their lack of emphasis on data accumulation that would properly identify all possible pathways for contaminant movement from S-area landfill to the Niagara River, and their failure to pay sufficient attention to the need "to fully define the plume of non-aqueous contaminant movement in bedrock beneath the Niagara River to Canada." Joint App. at 211-15. The motion was supported by five lengthy affidavits from counsel for intervenors, a biochemist, a chemist and two engineers. The complaint attached to the motion set forth nine common law claims of public nuisance, assault and battery over which the court was alleged to have ancillary jurisdiction. The complaint sought injunctive relief, demanded that Hooker undertake an elaborate "sampling and analytical program" (1) to determine the geologic, hydrogeologic, chemical and geochemical characteristics in the vicinity of the S-area landfill and the Plant; (2) to determine the nature and extent of chemical migration in the vicinity of the S-area landfill and the Plant; and (3) to ascertain the relative effectiveness of available remedial alternatives. Using this study, Hooker was then to prepare and implement a remedial program "which contains or removes the `S'-area landfill contaminants, cleans up chemicals which have already migrated from the site, and remediates or relocates the City of Niagara Falls Drinking Water Treatment Plant." All phases of the study and program were to
On June 13, 1983, the Province of Ontario and its Minister of the Environment (the "Province") moved for leave to intervene as a party plaintiff under F.R.Civ.P. 24(a)(2) or, in the alternative, under F.R.Civ.P. 24(b). The memorandum and affidavits in support of this motion revealed that the interests of these applicants were similar to those asserted by PPF and OCN. Like these groups, the Province alleged a threat to the health of persons drinking water or consuming fish caught from Lake Ontario and the Niagara River. The Province asserted additional interests relating to transboundary waters as reflected in the Boundary Waters Treaty and the 1978 Great Lakes Agreement. Pointing to the predominant concern of the existing plaintiffs with the water supplied to American citizens by the Plant, the Province maintained that Canadian citizens were inadequately represented. Memorandum in Support of Motion to Intervene. In its proposed complaint, the Province alleged four claims, one for violations of effluent limitations and permit requirements under the CWA, see 33 U.S.C. §§ 1311, 1342, 1365; two for violations of the emergency powers provisions of the CWA and the RCRA; and one based on the state common law of nuisance. For relief the Province, like the State and the City, requested "an injunction requiring defendants to take all such measures as may be necessary to prevent any further migration of hazardous chemical wastes from the S-area and water treatment sites through any medium, including bedrock." The prayer went on to suggest some possible measures, including physical containment, drainage, excavation and continued monitoring. Joint App. at 541-46.
Argument on the application of ETF, PPF and OCN and the application of the Province was heard on October 12, 1983. On February 10, 1984, the court granted the application of the Province under Rule 24(a)(2). 101 F.R.D. 444. On the issue of inadequate representation, "the most seriously disputed point," the court stated that "[t]here is, of course, a Canadian side of the Niagara River, and the water from the Niagara River flows into Lake Ontario," and found:
Joint App. at 574, 578, 580.
Meanwhile, the settlement negotiations begun in 1980 had continued. Prior to the order granting Ontario's intervention, the United States, the State, the City and Hooker had entered into a proposed settlement agreement which was lodged with the court on January 10, 1984. The centerpiece of this 208-page agreement is an elaborate containment program. Hooker is required first to conduct surveys and studies to determine the nature and extent of the migration of toxic chemicals from the S-area toward the Niagara River and into the bedrock beneath the River; particular attention is given to possible migratory pathways to the Plant. These surveys and studies are to be used to determine the appropriate technology required to abate the hazard. Hooker is required to install a barrier wall, a drain tile collection system, barrier plugs and a cap at the S-area landfill. In addition, drain tile collection systems are to be installed in and around the Plant, and Hooker is required to construct a new intake system to protect the integrity of the public drinking water supply. Hooker and the City share maintenance
As required by 28 C.F.R. § 50.7, a 30-day period was afforded in which persons not named as parties might comment on the proposed judgment. Under § 50.7, the Department of Justice is required to consider comments received and to file them with the court; the Department has the right to withdraw or withhold its consent to the judgment if the comments indicate that the judgment is inappropriate, improper or inadequate. Notice initiating the public comment period was published on January 19, 1984, 49 F.R. 2324. At the request of appellants, the Department of Justice twice extended the public comment period, for 30 days and 14 days respectively. Appellants filed no comments; the only comment received was from the Canadian government in opposition to the settlement, and after due consideration, the Department of Justice concluded that this provided no basis for modifying or withdrawing it. In its opinion granting the Province's motion to intervene, the court announced that, in conformity with the procedure it had followed in the Hyde Park Landfill case, supra, 540 F.Supp. 1067, it would conduct public hearings at which witnesses would be called, examined and cross-examined by the parties in order to develop a complete and accurate record on the basis of which the court would determine whether to approve the settlement.
On March 12, 1984, the court denied the intervention motions of NEA, ETF, PPF and OCN. It rejected NEA's position that it had a statutory right to intervention under F.R.Civ.P. 24(a)(1) on the basis that the citizen suits provisions of the statutes relied upon conferred no rights in suits brought under the emergency powers provisions. With respect to intervention of right under Rule 24(a)(2), it held that NEA and ETF had failed to show that their interests were inadequately represented by the United States or the State of New York, and that PPF and OCN had failed to show inadequate representation of their interests by the Province of Ontario. The court also denied permissive intervention; as explained above, the propriety of this ruling is not before us. The court emphasized, however, that it "by no means suggests that intervenors are unwelcome in environmental lawsuits," and, citing Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir.1976), acknowledged that citizen participation in such suits is to be welcomed and encouraged. Joint App. at 607. It therefore "strongly encourage[d] each of the applicants to participate as amici curiae in the hearings [to] be held in connection with the court's review of the proposed settlement and judgment." Id. It characterized the participation of ETF, PPF and OCN as amici in the Hyde Park Landfill hearings as having been "very beneficial," and said that it "invites and expects the same sort of participation from Niagara Environmental Action and again from the other groups in the present case." Id. In an order dated March 22, 1984, scheduling hearings from April 30 through May 4, 1984, resuming, if necessary, on May 10, 1984 until the conclusion of all testimony, the judge specified that the amici could call witnesses. His approving references, in the order denying these groups' motions to intervene, to the procedure used in the hearings conducted in the Hyde Park Landfill case also make clear that they would have been allowed to cross-examine, see 540 F.Supp. at 1072. Unhappily, this invitation was not accepted, and appellants took no part in the hearings, which were held between April 30 and May 3, 1984. Consequently, only the Province opposed the settlement. The question of
I. Statutory Intervention Under Rule 24(a)(1)
Of the four appellants, only NEA, with support from the State of New York, asserts a right to intervene under F.R.Civ.P. 24(a)(1), which provides for such intervention "when a statute of the United States confers an unconditional right to intervene."
The structure of the citizen suits provisions is the same in all three of these acts.
As we have already noted, the United States brought this suit pursuant to the "emergency powers" provisions of these same three acts. See 33 U.S.C. § 1364(a) (CWA); 42 U.S.C. § 300i (SDWA); id. § 6973 (RCRA). All of these provide, with differences not pertinent here,
The language of the CWA makes disposition of NEA's claim under this act the easiest of the three. Citizen suits are permitted to enforce "an effluent standard or limitation" or "an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365(a). The creation of "an imminent and substantial endangerment" is neither. Cf. Stream Pollution Control Bd., supra, 512 F.2d at 1041-42 (action to abate a nuisance is not one to require compliance with an effluent standard or limitation or an order so that no statutory right to intervene exists). Effluent standards and limitations are administratively established regulations of particular types of dischargers on the amounts of pollutants that may be discharged. See 33 U.S.C. § 1362(11) (defining an "effluent limitation" as "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources ...."); Zener, The Federal Law of Water Pollution Control, in Federal Environmental Law 682, 684 (Envtl.L.Inst.1974). The Environmental Protection Agency ("EPA") is required to establish effluent standards and limitations that all point source dischargers are required to meet. E.g., 33 U.S.C. §§ 1311, 1312, 1316, 1317. The EPA is also given authority, with certain procedural limitations, to issue orders and to bring civil suits to enforce these effluent standards and limitations. Id. § 1319. The language of the citizen suits provision clearly refers only to this aspect of the CWA's regulatory and enforcement scheme, and not to the provision empowering the Administrator to bring suit to prevent "an imminent and substantial endangerment" from a pollution source, which is directed toward a different problem.
The legislative history confirms this reading of the CWA. The discussion of the citizen suits provision in the Senate Report explains that "[a]uthority granted to citizens to bring enforcement actions under this section is limited to effluent standards or limitations established administratively under the Act." S.Rep. No. 414, 92d Cong., 2d Sess. 80 (1972), reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3747 (emphasis added). The Report then lists those sections of the CWA referred to; the emergency powers provision is not among them. See id. The portion of the Senate Report discussing section 309 of the Act, 33 U.S.C. § 1319, which provides the Administrator with authority to enforce effluent standards, specifically recognized that "the public is provided the right to seek vigorous enforcement action under the citizen suits provisions" should state and federal agencies fail to exercise their enforcement responsibility. Id. at 63, 1972 U.S.Code Cong. & Ad.News at 3730. No mention is made of citizen suits, however, in the discussion of the emergency powers provision, which the Report describes as a grant of "new authority" to the Administrator for "immediate effective action" in case of an emergency "water pollution episode." Id. at 77, 1972 U.S.Code Cong. & Ad.News at 3744. In this connection, it is worth noting that the notice requirement for commencing a citizen suit, see 33 U.S.C. § 1365(b)(1)(A) (60 days notice to Administrator, State and alleged polluter), although not inconsistent with the enforcement of effluent standards established by an already slow administrative process, does not fit easily with the notion of "immediate effective action."
Id. at 78, 79, 1972 U.S.Code Cong. & Ad.News at 3745, 3746. This description is clearly inapplicable to suits brought under the emergency powers provision, which often involve technical evaluations relating to pollutants for which no effluent levels have been established, see United States v. Waste Indus., Inc., 734 F.2d 159, 164 (4th Cir.1984); Douglas, Safe Drinking Water Act of 1974 — History and Critique, 5 Envtl.Aff. 501, 536 (1976), and which are judged under an open-ended, "court-developed" standard of what constitutes "an imminent and substantial endangerment." See S.Rep. No. 172, 96th Cong., 2d Sess. 5 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 5019, 5023 (1980 amendments to RCRA) ("Like other imminent and substantial endangerment provisions in environmental statutes (e.g., section 504 of the Clean Water Act ... and section 1431 of the Safe Drinking Water Act), section 7003 [of the RCRA] is essentially a codification of common law nuisance remedies."); Skaff, supra, 3 Harv.Envtl.L.Rev. at 312-18.
NEA concedes that "a literal interpretation of the CWA's Citizen Suits section would not permit unconditional intervention," Brief for NEA at 15, but maintains that intervention should nonetheless be allowed under the CWA in such circumstances as those in this case. Citing only an unreported decision of the District Court for the Northern District of Alabama, United States v. Olin Corp., No. CV80-PT-5300-NE (N.D.Ala. June 25, 1982), NEA argues that a statutory right to intervene should be found if the government complaint states facts that could have been relied upon to bring suit under other provisions of the act for which this right is expressly provided. But the plaintiff is master of his own complaint. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). So long as suit was properly brought under the emergency powers provision, a fact uncontested here, it is irrelevant that suit perhaps could also have been brought under some other provision. The simple truth of the matter is that this suit was not brought under any provision of the CWA except the emergency powers provision, and, as we have demonstrated,
Section 1449 of the SDWA authorizes a citizen suit or citizen intervention in a government suit that alleges violations of "any requirement" prescribed under the Act, 42 U.S.C. § 300j-8(a), (b); section 7003 of the RCRA provides for similar citizen participation in suits alleging violations of "any permit, standard, regulation, condition, requirement, or order" which becomes effective pursuant to the act, id. § 6972(a), (b). Relying on its argument that the "imminent and substantial endangerment" language of the emergency powers provisions of these two acts erects a "substantive" legal standard in addition to conferring "jurisdictional" authority to bring suit, NEA maintains that the emergency powers provisions create a "requirement" within the meaning of the citizen suits provision of the SDWA, and a "standard," "condition" or "requirement" within the meaning of the citizen suits provision of the RCRA that one not cause "an imminent and substantial endangerment" to health. Consequently, NEA concludes, a government suit under the emergency powers provisions of these statutes carries with it an unconditional right for private persons to intervene. Brief for NEA at 12-14.
To begin, we fail to see how resort to the protean distinction between "substantive" and "jurisdictional" matters aids NEA. The citizen suits provisions do not provide a right to bring an action or to intervene in a government action alleging violations of "any substantive standard" established in the legislation. The fact that the emergency powers provision may establish a "substantive" standard is thus irrelevant. The proper inquiry is whether emergency actions are included among the particular types of actions for which citizen participation is authorized by the citizen suits provisions of the SDWA and RCRA. This inquiry is neither answered nor even particularly aided by the argument that the emergency powers provisions are substantive in nature.
NEA's argument for statutory intervention under these statutes is nevertheless stronger than its argument for intervention under the CWA. In contrast with the CWA, it is at least possible, without distorting language beyond its ordinary meaning, to argue that these emergency powers provisions establish a "requirement" or "condition" or "standard," and are thus within the scope of the respective citizen suits provisions. Also, the legislative histories of these provisions contain much less than their counterparts in the CWA to indicate the relation, if any, between the emergency powers and citizen suits provisions. See, e.g., H.R.Rep. No. 1185, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 6454 (SDWA); H.R.Rep. No. 1491, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.Code Cong. & Ad.News 6238 (RCRA). What little guidance there is in the legislative materials concerns the RCRA, and supports reading that act in the same manner as we have read the CWA. In its discussion of the citizen suits provision, the Senate Report, borrowing language drawn directly from the legislative history of the CWA, states that citizen participation is "carefully restricted to actions where violations of standards and regulations ... [are] alleged." S.Rep. No. 988, 94th Cong., 2d Sess. 18 (1976).
Despite the differences between the CWA and the SDWA and RCRA, we conclude that the citizen suits provisions of the SDWA and the RCRA also do not grant a right to private parties to intervene in government suits brought under the emergency
II. Denial of Intervention as of Right under Rule 24(a)(2)
The propriety of the denial of the applications to intervene under F.R.Civ.P. 24(a)(2) is a closer question. Rule 24(a)(2) seeks to identify those circumstances in which the interests favoring intervention so far outweigh those opposed that intervention should be granted as of right. As originally adopted in 1938, the Rule required that the prospective intervenor either have an interest in "property in the custody of the court" or face the consequence of being "bound" by a judgment. See F.R.Civ.P. 24(a), Advisory Committee Note to 1966 Amendments [hereinafter cited as 1966 Advisory Committee Note]. The Rule proved too restricted in many cases to accomplish the goal of accommodating the conflicting interests of parties and intervenors. See 1966 Advisory Committee Note; Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 400-01 (1967); Shreve, Questioning Intervention of Right — Toward a New Methodology of Decisionmaking, 74 Nw.U.L.Rev. 894, 918 (1980).
This means several things: The various components of the Rule are not bright lines, but ranges — not all "interests" are of equal rank, not all impairments are of the same degree, representation by existing parties may be more or less adequate, and there is no litmus paper test for timeliness. Application of the Rule requires that its components be read not discretely, but together. A showing that a very strong interest exists may warrant intervention upon a lesser showing of impairment or inadequacy of representation. Similarly, where representation is clearly inadequate, a lesser interest may suffice as a basis for granting intervention. Cf. 3B Moore's Federal Practice, supra, ¶ 24.07 at 24-51 ("the requirements of interest, impairment and inadequacy of representation are but three facets of the same problem"). The requirements for intervention embodied in Rule 24(a)(2) must be read also in the context of the particular statutory scheme that is the basis for the litigation and with an eye to the posture of the litigation at the time the motion is decided. Finally, although the Rule does not say so in terms, common sense demands that consideration also be given to matters that shape a particular action or particular type of action. One such matter is identified in a valuable Note, Intervention in Government Actions, 89 Harv.L.Rev. 1174 (1976) [hereinafter cited as Harvard Note]:
Id. at 1177 (footnote omitted); see also Nuesse v. Camp, 385 F.2d 694, 700 (D.C.
In the present case, the district judge denied intervention on the basis of his finding that appellants failed to demonstrate "that their interests may be inadequately represented by the existing parties." Order No. 10 at 9, Joint App. at 597. This conclusion, in turn, was based to a large extent on the fact that the existing parties were governmental entities. See id. at 911, Joint App. at 597-99. We agree with the district court that it is significant to the analysis required by Rule 24(a)(2) that the plaintiffs are governmental entities suing on behalf of their citizens. In such actions, the state or the United States presents itself "in the attitude of parens patriae, trustee, guardian or representative of all her citizens." Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44 L.Ed. 347 (1900). Once quite limited, the concept of parens patriae has been expanded to include actions in which a state seeks to redress quasi-sovereign interests, such as damage to its general economy or environment, even where the injury is to a fairly narrow class of persons. See Hawaii v. Standard Oil Co., 405 U.S. 251, 257-59, 92 S.Ct. 885, 888-89, 31 L.Ed.2d 184 (1972); Puerto Rico ex rel. Quiros v. Bramkamp, 654 F.2d 212, 215-16 (2d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383 (1982); Note, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Colum.J.L. & Soc.Probs. 411, 412 (1970).
Courts of appeals in other circuits have concluded that a government asserting its status as parens patriae deserves special consideration when the issue is adequacy of representation. We are cited by appellees to Environmental Defense Fund v. Higginson, 631 F.2d 738 (D.C.Cir.1979) (per curiam), an action by EDF and two other environmental groups to compel certain federal officials to prepare an environmental impact statement relating to projects and operations in the Colorado River basin. The district court granted the applications of four states, including Colorado and Nevada, for leave to intervene. The applications of four Colorado and one Nevada water district, however, were denied on the ground that the local entities were adequately represented by the states in their capacity as parens patriae. The Court of Appeals for the District of Columbia affirmed.
Id. at 740 (footnote omitted). A similar presumption of adequate representation has also been applied in suits where intervention is sought on the side of a governmental party by courts of appeals in the Third and Fifth Circuits. See Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir.), cert. denied sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976); Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 674 F.2d 970, 973-74 (3d Cir.1982); New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 690 F.2d 1203, 1213 & n. 7 (5th Cir.1982) (citing Higginson for the proposition that "where governmental parties are already present in case, private parties must make more than a minimal showing of inadequate representation," and requiring consumers to show that the governmental party is "ill-equipped or unwilling" to protect their interests before finding inadequate representation). See also Wade v. Goldschmidt, 673 F.2d 182, 186 n. 7 (7th Cir.1982) (citing Higginson for proposition that there is a presumption of adequate representation "when the proposed intervenor and a party to the suit (especially if it is a state) have the same ultimate objective.").
Appellants seek to distinguish these cases on the basis that the applicants for intervention were political subdivisions of the state. Although the Higginson opinion does begin by stating: "[i]n this case we consider the circumstances under which a sub-state entity may intervene in an action in federal district court in which the parent state is already a party," 631 F.2d at 739 (footnote omitted), the portion of the opinion already quoted refers to "a citizen or subdivision of [the] state," id. at 740, and it is clear that the court is merely applying a presumption ordinarily applied to private citizens to political subdivisions as well. Moreover, this assertion simply is not true of the intervenors in the cases decided in the other two circuits. See Rizzo, supra, 530 F.2d at 502 (individual firemen and their union); Delaware Valley Citizens' Council, supra, 674 F.2d at 972 (37 state legislators); New Orleans Public Service, Inc., supra, 690 F.2d at 1210 (consumers).
Whether or not it is particularly helpful to speak of a "presumption" of adequate representation by the sovereign in parens patriae litigation, we agree with the Third, Fifth and District of Columbia Circuits that, in litigation of this sort, a greater showing that representation is inadequate should be required. It is not enough that the applicant would insist on more elaborate pre-trial or pre-settlement procedures or press for more drastic relief, particularly when the sovereign's interest is in securing preventive relief of the same general sort as the applicant. While it would be going too far to require an applicant to demonstrate collusion, there must be, at least in cases where the applicant has no independent right to sue, cf. Harvard Note, supra, at 1178-98 (distinguishing between litigable and non-litigable interests), a strong affirmative showing that the sovereign is not fairly representing the interests of the applicant.
In arguing that no special consideration of adequacy of representation is required by the fact that governmental plaintiffs are suing as parens patriae, and that "only a minimal showing that representation may be inadequate is required for intervention under Rule 24(a)(2) ....," Brief for ETF, PPF and OCN at 28, appellants rely heavily on Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686
404 U.S. at 538 n. 10, 92 S.Ct. at 636 n. 10.
Appellants respond that, despite these considerations and the decisions of other circuits, this court has already adopted the Trbovich footnote's "minimal burden" analysis even in parens patriae suits. Appellants cite NYPIRG v. Regents, 516 F.2d 350 (2d Cir.1975) (per curiam), and United States Postal Service v. Brennan, 579 F.2d 188 (2d Cir.1978), but neither supports them. NYPIRG was not an enforcement action, but rather an attack by consumers against a regulation of the Regents of the University of the State of New York. The proposed intervenors, pharmacists and their society, sought to intervene on the side of the Regents to defend the regulation. The State was not acting as a parens patriae. Moreover, the court made no mention of Trbovich or of a "minimal burden," instead allowing intervention largely because the Regents conceded the inadequacy of their representation of the pharmacists. Here, the United States and the City vigorously assert the adequacy of their representation of the residents of Niagara Falls, New York, and the Province makes the same claim with respect to Canadian users of the Niagara River and Lake Ontario. In the Brennan case, the National Association of Letter Carriers sought to intervene in an action by the Postal Service to enjoin the running by defendants of a small mail delivery service. Despite the fact that the Postal Service did not claim to sue as a parens patriae, indeed, the court noted that the Postal Service is "a semi-private corporation," 579 F.2d at 191, the court there held that the Postal Service adequately represented the interests of the letter carriers. Thus, nothing in the law of this circuit shakes our agreement with other circuits that in an enforcement action by a governmental entity suing as a parens patriae, it is proper to require a strong showing of inadequate representation before permitting intervenors to disrupt the government's exclusive control over the course of its litigation. See also 7A Wright & Miller, supra, § 1909 at 524-25, 528-29 (if "there is a party charged by law with representing [a proposed intervenor's] interest, then a compelling showing should be required to demonstrate why this representation is not adequate," and a "very compelling showing" ought to be required "when a governmental body is the named party"); 3B Moore's Federal Practice ¶ 24.07 at 24-72.
Such considerations apply with special force to actions brought by the United States to abate "an imminent and substantial endangerment" under the emergency powers provisions of the CWA, SDWA and RCRA. We need not and do not go so far as to hold that Congress impliedly repealed Rule 24(a)(2) for such suits in order to conclude, as we do, that intervention as of right in such actions is to be narrowly limited and requires a particularly strong showing of inadequate representation by the applicant for intervention. As has been shown above, Congress "carefully restricted" the rights of private persons to bring or to intervene in actions of this sort. S.Rep. No. 414, supra, at 78, 1972 U.S. Code Cong. & Ad.News at 3745 (CWA); S.Rep. No. 988, supra, at 18 (RCRA). We have already quoted the legislative materials explaining that the reason for this restriction is Congress's felt need to limit citizen participation to enforcement of administratively established standards of liability. Congress did not intend for private individuals to be able to use the federal
Allowing intervention freely under Rule 24(a)(2) in government actions to enforce these emergency powers provisions would have precisely this effect. Emergency powers actions may be pursued "[n]otwithstanding any other provision," 33 U.S.C. § 1364 (CWA); 42 U.S.C. § 300i (SDWA); id. § 6973 (RCRA); the Administrator and the courts are authorized to overlook technological and economic feasibility and to pursue these actions unlimited by other constraints, giving paramount importance to the sole objective of the public health. See, e.g., H.R.Rep. No. 1185, supra, at 36, 1974 U.S.Code Cong. & Ad.News at 6487 (SDWA); Skaff, supra, 3 Harv.Envtl.L.Rev. at 301 & n. 24; cf. H.R.Rep. No. 294, 95th Cong., 2d Sess. 327-29 (1977), reprinted in 1977 U.S.Code Cong. & Ad.News 1077, 1406-08 (Clean Air Act Amendments of 1977); H.R.Rep. No. 728, 90th Cong., 1st Sess., 17-18 (1967), reprinted in 1967 U.S. Code Cong. & Ad.News 1938, 1954-55 (Air Quality Control Act of 1967). These are not suits to enforce established regulatory standards. On the contrary, emergency actions are "designed to deal with situations in which the regulatory schemes break down or have been circumvented." United States v. Waste Indus., Inc., supra, 734 F.2d at 164. Thus, the legal standard "an imminent and substantial endangerment" is quite amorphous and open-ended, cf. H.R.Rep. No. 1185, supra, at 46-47, 1974 U.S. Code Cong. & Ad.News at 6487-88 (SDWA) (defining "imminent" and "substantial" broadly); S.Rep. No. 988, supra, at 18 (RCRA) (Administrator may bring enforcement action "upon presentment of evidence which satisfies him that the danger is imminent and substantial"), and has been construed broadly in order to leave the Administrator free to abate emergency pollution problems, see Skaff, supra, 3 Harv.Envtl.L.Rev. at 305-18 (discussing cases); Douglas, supra, 5 Envtl.Aff. at 536-37; cf. H.R. Rep. No. 294, supra, at 328, 1977 U.S.Code Cong. & Ad.News at 1407 ("like comparable authority in the Safe Drinking Water Act," construe emergency powers provision of Clean Air Act broadly). Indeed, in amending the emergency powers provision of the RCRA in 1980, the Senate Report explained that the emergency powers provision "is essentially a codification of common law public nuisance remedies," emphasizing, however, that it "should not be construed solely with respect to the common law" because some concepts "are meant to be more liberal than their common law counterparts." S.Rep. No. 172, 96th Cong., 2d Sess. 5 (1980), reprinted in 1980 U.S. Code Cong. & Ad.News 5019, 5023. The emergency powers provisions thus provide precisely the kind of "`common law' or court-developed" standard to which Congress had not wished citizen participation to apply. We must be careful not to open a back door to the courthouse when Congress deliberately closed the front door.
There is another reason to apply Rule 24(a)(2) narrowly in this case. The emergency powers provisions confer "broad authority" on the Administrator to provide him with substantial flexibility needed to prevent imminent hazards. See H.R.Rep. No. 1185, supra, at 34-35, 1974 U.S.Code Cong. & Ad.News at 6487-88 (SDWA); S.Rep. No. 414, supra, at 78, 1972 U.S. Code Cong. & Ad.News at 3744 (CWA); Douglas, supra, 5 Envtl.Aff. at 536-37; see generally Skaff, supra, 3 Harv.Envtl.L.Rev. 298. This broad authority granted to the Administrator extends not only to the decision to bring a suit, but also to defining what level of a given pollutant constitutes "an imminent and substantial endangerment," and, most importantly, to deciding what the appropriate remedy should be. See 33 U.S.C. § 1364 (CWA) (Administrator should "take such other action as may be necessary" to abate the hazard); 42 U.S.C. § 300i (SDWA) (action Administrator may take "may include (but shall not be limited to)" issuing orders and filing civil actions); id. § 6973(a) (RCRA as
This analysis also provides a further basis for holding that the "minimal" requirement of the Trbovich footnote does not govern this case. In Trbovich, the reason that the Court held that intervention would be permitted under the LMRDA, despite the fact that the statute vested exclusive authority in the Secretary of Labor to bring enforcement actions, related to the purpose for which initiation of the suits was made exclusive. According to the Court, the legislative history of the LMRDA
404 U.S. at 532, 92 S.Ct. at 633 (emphasis added). Based on this conclusion and on the further conclusion that "[t]here is no evidence whatever that Congress was opposed to participation by union members in the litigation, so long as that participation did not interfere with the screening and centralizing functions of the Secretary," id. at 532-33, 92 S.Ct. at 633, the Court permitted intervention in suits brought by the Secretary. Significantly, however, the Court limited the intervention to the claims presented by the Secretary's complaint, barring intervenor from raising new issues, although this limitation was not applied to the terms of a new election if the court found one to be necessary. Id. at 537 & n. 8, 92 S.Ct. at 636 & n. 8.
The history with respect to the emergency powers provisions here at issue is quite different. There is substantial evidence that Congress was opposed to participation by private citizens in this kind of litigation. Moreover, the nature of a suit under the LMRDA makes the Trbovich analysis plausible, since Congress had little reason to fear that private intervention, limited to the issues raised by the Secretary, would impede his enforcement of the LMRDA. Litigation under the LMRDA is relatively straightforward; once the action is brought, the legal standards for determining liability are laid out fairly clearly in the statute. Although LMRDA cases may involve sticky factual disputes, these mostly involve conflicting testimony among various witnesses that require only evaluations
This brings us finally to the question of the standard of our review of Chief Judge Curtin's order. It seems to have been thought at one time that the standard of review under Rule 24(a)(2) was de novo review for any error,
We cannot conclude that Chief Judge Curtin abused his discretion in this case, even giving the term "abuse" a "narrow" reading, see Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 764 & n. 42 (1982). When all is said and done, appellants' position is simply that their interests are more "focused" than are those of the United States, the State of New York, the Province of Ontario and the City of Niagara Falls. Appellants believe that this intensified focus places them in a drastically different stance than these governmental plaintiffs. In point of fact, with the exception of NEA's request for a medical detection program, they have asked for little that is new or even particularly different from the relief sought by plaintiffs. The bottom line appears to consist of little else than assertions by appellants that they would insist on more and more detailed testing before even considering a settlement, and that these tests might lead the district judge to conclude that certain aspects of the elaborate settlement worked out between the parties should be altered. It simply cannot be that a court hearing an appeal from a denial of intervention is required to wade through the mass of technical and scientific data tendered by appellants in support of their claim of inadequate representation and to make what amounts to a preliminary decision on the same issues that would arise on an appeal from an order approving the settlement. That task is best left to the district judge, particularly this judge, who has lived for the last five years with this action and the three related actions brought by the Government against Hooker, and who has supervised discovery, seen the attorneys for the parties and the proposed intervenors in action, and been in intimate contact with the settlement discussions. He especially is in a far better position than we to weigh the advantages to be derived from appellants' participation as intervenors (as distinguished from the amici-plus status he offered), against the disadvantages that will result from delaying remediation of this pollution hazard to the parties and to
While these considerations are all that are needed for decision, an added reason for our reluctance to disturb Chief Judge Curtin's ruling derives from his offer to appellants of an elevated amicus status that would have enabled them to go a long way toward presenting their objections to the settlement. Cf. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.1982) (amicus given "full rights of parties to participate" by trial court); Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C.1974) ("solely within discretion of trial court to determine the fact, extent, and manner of participation by the amicus"). The judge was prepared to allow appellants, as amici, to call their own witnesses and to cross-examine the witnesses of the settlement's proponents. Appellants responded that this was still insufficient, pointing to several differences between the offered status and the rights of an intervenor, even an intervenor limited to the claims asserted by the plaintiff. These differences are that amicus participation would not confer (1) the right to block a settlement by simply refusing to sign, (2) the right to have discovery and to make motions, (3) the right to appeal, and (4) the right to participate in the implementation and monitoring of the settlement's remediation plan.
Initially, we note that only the second of these claimed insufficiencies directly relates to appellants' ability to participate in the hearing and present their concerns, even if in slightly limited fashion. With respect to (1), appellants conceded at oral argument that the court could have conditioned intervention so that appellants could only voice their objections and would have no right to prevent the court's accepting the settlement;
42 U.S.C. § 300i(a).
42 U.S.C. at § 6973. Section 7003 was amended in 1980, Pub.L. No. 96-482, § 25, Oct. 21, 1980, 94 Stat. 2348.
33 U.S.C. § 1364(a).
The similar provision in the Safe Drinking Water Act provides, in pertinent part:
Finally, the citizen suits provision of the Resource Conservation and Recovery Act provides, in pertinent part:
3B Moore's Federal Practice ¶ 24.07 at 24-71-72.
The Notes goes on to conclude:
Id. at 1190.
Chief Judge Bazelon went still further in Smuck v. Hobson, supra, 408 F.2d 175, saying that:
"while the division of Rule 24(a) and (b) into `Intervention of Right' and `Permissible Intervention' might superficially suggest that only the latter involves an exercise of discretion by the court, the contrary is clearly the case." Id. at 178 (footnote omitted). This portion of his opinion was joined only by Judges Leventhal and Robinson, and the articles by Professor Kaplan and Shapiro cited to support the quoted statement do not go quite so far. However, he and the two judges who joined him may well have been correct.
The Canadian appellants also argue that no special consideration should be given to the Province as a parens patriae representing their interests because the suit was prosecuted by the Ministry of the Environment which, appellants argue, lacks the legal capacity under Canadian law to represent the Province of Ontario or its citizens in court. The parties sharply dispute whether, under Fed.R.Civ.P. 44.1, appellants have waited too long to raise an issue of foreign law. There is no need to consider the point. On this issue too we decline to let excessive formalism dictate results. A governmental party that enters a lawsuit solely to represent the interests of its citizens, as the Province did here, see Complaint of Province ¶ 3, Joint App. at 543, differs from other parties, public or private, that assert their own interests, even when these interests coincide with the interests of a prospective intervenor. The Province participated in the settlement hearings, and, so far as we are advised, neither the court below nor the other parties questioned its status. Whether by some technical point of Canadian law the lawyer who appeared in Chief Judge Curtin's courtroom should have come from the Attorney General's office rather than from the Ministry of the Environment hardly seems pertinent anymore, since the interests of Ontario citizens already have been represented by officials from the Provincial government as parens patriae.