United States District Court, D. New Hampshire
United States of America, et al.
City of Portsmouth, et al. Opinion No. 2016 DNH 113
BARBADORO UNITED STATES DISTRICT JUDGE.
of Portsmouth residents seeks to intervene in a long-running
case involving the City of Portsmouth's compliance with
the Clean Water Act (CWA). The case began in 2009 when the
U.S. Environmental Protection Agency (EPA) sued the City for
failing to comply with various sections of the CWA governing
the discharge of pollutants into the Piscataqua River and
Great Bay Estuary. See Doc. No. 1. The State of New Hampshire
intervened soon after, bringing claims against the City for
alleged violations of state environmental laws. See Doc. Nos.
3 (State's Motion to Intervene); 4
(State's Intervenor Complaint). In September 2009, the
parties signed a lengthy consent decree that committed the
City, among other things, to building a secondary wastewater
treatment facility to treat sewer overflow. See Doc. No. 8.
2012, the EPA filed a motion to modify the original consent
decree. Doc. No. 13. The Conservation Law Foundation (CLF), a
non-profit environmental group, filed a motion to intervene
in the case, which the City opposed. See Doc. Nos. 11
(CLF's motion); 15 (City's objection). I granted
CLF's motion, but limited its intervention to the issues
that were before the court at the time, namely the approval
of the consent decree modification. Doc. No. 21. Then, after
receiving briefing from all the parties in the case, I
approved the first consent decree modification. Doc. No.
April 2016, the EPA moved to modify the consent decree a
second time. Doc. No. 38. This second modification
would set, among other things, a revised construction
schedule for the wastewater treatment facility on Peirce
Island in Portsmouth. See Doc. No. 38-1 at 4-5. The
next month a group of Portsmouth residents filed the present
motion to intervene pursuant to Federal Rule of Civil
Procedure 24. Doc. No. 40. They argue that they
have standing in the case as "citizens" under 33
U.S.C. § 1365(g) and under the constitutional guidelines
set forth in Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167
(2000). Doc. No. 40 at 2.
addition to requesting intervention, the residents assert a
number of grievances. They argue, among other things, that
the proposed consent decree modification is "weak,
inadequate, and unenforceable." Id. at 5. They
contend that the consent decree will not end the City's
violations of the CWA, and oppose the planned location of the
wastewater facility on Peirce Island. See Id. at
5-11. They formally request that I a) allow them to intervene
in the case; b) delay approval of the consent decree
modification until they receive certain documents they have
requested under the Freedom of Information Act; and c) delay
approval of the consent decree modification until the
"final disposition of [their] citizens suit brought
pursuant to 33 U.S.C. 1365(a)(1)." Id. at 11.
City objects to the residents' motion. Doc. No.
42. It argues that the residents' intervention
would be untimely and objects to their substantive arguments
about the adequacy of the consent decree. The EPA and CLF
also responded to the motion to intervene. Both parties
stated that, although they do not oppose a limited
intervention by the residents, they do object to many of the
residents' substantive arguments and oppose a delay in
the project. See Doc. Nos. 41; 46. Neither
the City, the EPA, nor CLF contend that the residents lack
standing to intervene.
provides two primary grounds for intervention: intervention
of right and permissive intervention. Fed.R.Civ.P. 24(a)-(b).
A party may intervene of right if either: 1) it "is
given an unconditional right to intervene by a federal
statute, " or 2) it "claims an interest relating to
the property . . . 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 . . . ." Fed.R.Civ.P. 24(a). A party may
seek permissive intervention if A) it "is given a
conditional right to intervene by a federal statute, "
or B) it "has a claim or defense that shares with the
main action a common question of law or fact."
Fed.R.Civ.P. 24(b)(1). Both types of intervention require
that a motion to intervene be "timely."
residents do not indicate which type of intervention they
seek, although they do argue they have a right to bring a
citizen suit under 33 U.S.C. § 1365(a)(1). See Doc. No.
40 at 3. The City concedes that the CWA confers a statutory
right on proper parties to intervene, but nonetheless argues
that the motion should be denied as untimely. See Doc. No.
42-1 at 4. It contends that if the residents wish to
intervene, they should have done so four years ago, when CLF
did. Id. The City claims that the residents knew of
their interest in the case years ago and had ample
opportunity to voice their concerns at any of the numerous
City Council meetings where the case was discussed.
Id. at 6. Now, with the project "100% designed,
" a new compliance schedule "fully negotiated,
" and a $75 million bond resolution authorization
approved by the City Council, the "Neighbors come too
late." Id. Moreover, the City argues, the
residents do not need to intervene in this case to file their
citizens suit - they may simply initiate a separate action.
Id. at 8.
the City raises valid arguments, I nonetheless allow the
residents to intervene here for the limited purposes
specified in this Order. As the First Circuit has noted,
"[t]here is no bright-line rule delineating when a
motion to intervene is or is not timeous." Banco Popular
de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1230
(1st Cir. 1992). "Instead, courts must decide the
question on a case by case basis, examining the totality of
the relevant circumstances." Id. Here, the
residents will undoubtedly be affected by the proposed
consent decree modification and appear to have good faith
concerns that they wish to express. Given that I previously
allowed CLF to intervene several years after the case was
commenced, I see no reason to bar the residents from doing
however, that the residents are only allowed to intervene
with respect to issues that are presently before the court:
namely, the motion to approve the second proposed consent
decree modification. Doc. No. 43. They may therefore
participate in briefing in response to that pending motion,
appeal from any adverse decision, and participate in regular
interactions with the parties concerning the second proposed
consent decree modification. I express no views at the
present time with respect to the other relief requested by
the residents. Instead, I direct the parties to meet and
confer and reach agreement on a schedule for any additional
briefing beyond what the parties have already filed. A joint
proposed briefing schedule shall be submitted by the parties
within 14 days of the date of this Order.
motion to intervene (Doc. No. 40) is granted to the
extent that it seeks relief authorized by this Order.