North Carolina Motion To Intervene 9/24/2013 ND Cal

Marc Bernstein (Motion for admission pro hac vice pending)
Special Deputy Attorney General

North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602
NC State Bar No. 21642
Phone Number: (919)716-6956
Fax Number: (919) 716-6764
E-mail Address: [email protected]

Michael N. Westheimer (State Bar No. 178938)
Buchalter Nemer, PC
55 Second Street, Suite 1700
San Francisco, CA 94105-3493
Phone Number: (415) 227-0900
Fax Number: (415) 904-3111

Attorneys for the State of North Carolina, Proposed Plaintiff-Intervenor

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

SIERRA CLUB and NATURAL
RESOURCES DEFENSE COUNCIL
Plaintiffs,
and

THE STATE OF NORTH CAROLINA
Proposed Plaintiff-Intervenor,

v.

REGINA MCCARTHY, in her official
capacity as Administrator of the United States
Environmental Protection Agency
Defendant.

_____________________________________

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Case No: 4:13-cv-03953(KAW)

Proposed Plaintiff-Intervenor
North Carolinas Notice of Motion,
Motion to Intervene and
Memorandum of Points and
Authorities in Support of
Motion to Intervene

Date: November 7, 2013
Time: 11:00 a.m.
Place: Courtroom 4, 3rd Floor
Magistrate Judge: The Hon. Kandis A.
Westmore

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Case3:13-cv-03953-SI Document16 Filed09/24/13 Page1 of 19

Notice of Motion and Motion to Intervene and Memorandum CASE NO.: 4:13-cv-03953
of Points and Authorities in Support of Motion to Intervene Page i

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii
I. ISSUE TO BE DECIDED .................................................................................................. 2
II. STATEMENT OF FACTS ................................................................................................. 2
III. NORTH CAROLINA IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT .... 5
A. Legal Standard ........................................................................................................ 5
B. North Carolina Has Timely Moved to Intervene. ................................................... 5
C. North Carolina Has a Significant Protectable Interest Relating to the Issues. ........ 6
D. Disposition of the Action May Impair or Impede North Carolinas Ability to
Protect its Interests. ................................................................................................. 9
E. North Carolinas Interests Are Not Adequately Represented by the
Existing Plaintiffs.................................................................................................. 11
IV. ALTERNATIVELY, NORTH CAROLINA IS ENTITLED TO INTERVENE
ON A PERMISSIVE BASIS. ........................................................................................... 12
V. CONCLUSION ................................................................................................................. 14


of Points and Authorities in Support of Motion to Intervene Page ii

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TABLE OF AUTHORITIES

Cases
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003) ................................................................ 5,6,9
Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009) ................................................................. 4
Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489(9th Cir. 1995)........................... 6
General Motors Corp. v. United States, 496 U.S. 530 (1990) ........................................................ 2
In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980 (9th Cir. 2008) ............ 6
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) ..................................... 12,13
Mille Lac Band of Chippewa Indians v. State of Minn., 989 F.2d 994 (8th Cir. 1993) .................. 6
Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ........................................ 11,13
Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1993)........................................................................ 9
Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326 (9th Cir. 1977) ................................ 12,13
Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ................................... 9,11
Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .................................................. 11
U.S. ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391 (9th Cir. 1992) ................. 6
U.S. v. State of Oregon, 745 F.2d 550 (9th Cir. 1984) ................................................................... 5
Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ................................................................................ 3
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) ............................................... 6
Statutes
28 U.S.C. 1367(a) ................................................................................................................. 13,14
42 U.S.C. 7407(a) ........................................................................................................................ 2
42 U.S.C. 7407(d)(1)(A) .............................................................................................................. 3
42 U.S.C. 7407(d)(1)(A)(ii) ....................................................................................................... 12
42 U.S.C. 7407(d)(1)(B)(i) .......................................................................................................... 3
42 U.S.C. 7407(d)(2)(A) .............................................................................................................. 3
42 U.S.C. 7409(a) ........................................................................................................................ 2
42 U.S.C. 7410(a) ........................................................................................................................ 8

of Points and Authorities in Support of Motion to Intervene Page iii

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42 U.S.C. 7475-7479 ................................................................................................................. 4
42 U.S.C. 7501-7509 ................................................................................................................... 4
42 U.S.C. 7604(a)(2) .................................................................................................................. 13
42 U.S.C. 7604(b)(2) ................................................................................................................. 12
N.C. Gen. Stat. 143-215.107D ..................................................................................................... 7
United States Constitution
U.S. Const. Article III .................................................................................................................. 14
Rules of Court
Fed. R. Civ. P. 24 ............................................................................................................................ 9
Fed. R. Civ. P. 24(a) .................................................................................................................... 1,2
Fed. R. Civ. P. 24(a)(2) ................................................................................................................... 5
Fed. R. Civ. P. 24(b) .................................................................................................................... 1,2

7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Fed. Prac. & Proc. 1911, 357-63 (2d ed. 1986) ............................................................12

Regulations
40 C.F.R. 50.17 ............................................................................................................................ 8
75 Fed. Reg. 35,520 (June 22, 2010) .............................................................................................. 4
77 Fed. Reg. 46,295 (Aug. 3, 2012)................................................................................................ 4
78 Fed. Reg. 47,191 (Aug. 5, 2013) ................................................................................................4


of Points and Authorities in Support of Motion to Intervene Page 1

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NOTICE OF MOTION TO INTERVENE

PLEASE TAKE NOTICE that on November 7, 2013, at 11:00 a.m., or as soon thereafter
as the matter may be heard, in Courtroom 4, 3
rd
Floor, of the Oakland Courthouse, 1301 Clay
Street, Oakland, California 94612, the State of North Carolina will bring for hearing a motion to
intervene in this action.
RELIEF REQUESTED
Pursuant to Federal Rules of Civil Procedure 24(a) and (b), the State of North Carolina
moves to intervene in this matter as a matter of right or, in the alternative, on a permissive basis.
This motion is based on this Notice of Motion and Motion, the Memorandum of Points and
Authorities filed herewith, the proposed Complaint in Intervention filed as an exhibit herewith,
the declaration in support of this Motion from Sheila Holman, Director of the Division of Air
Quality of the North Carolina Department of Environment and Natural Resources, and upon such
other matters as may be presented to the Court at the time of the hearing. The State requests that
the Court allow this motion, allow the State to participate fully in this matter as a plaintiff, and
allow the State to proceed without the technical requirement of filing an intervenor complaint, as
discussed more fully below. Pursuant to Civil Local Rule 7-1(b), the State respectfully requests
that the Court grant this motion without oral argument or, if the Court wishes to hear oral
argument, that the argument take place by telephone conference.



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MEMORANDUM OF POINTS AND AUTHORITIES
I. ISSUE TO BE DECIDED
Whether the State of North Carolina is entitled to intervene as of right in this action under
Fed. R. Civ. P. 24(a) or, in the alternative, is entitled to permissive intervention under Fed. R.
Civ. P. 24(b).
II. STATEMENT OF FACTS
On August 26, 2013, Plaintiffs Sierra Club and Natural Resources Defense Council
(collectively, Plaintiffs) filed a Complaint for Declaratory and Injunctive Relief against the
Administrator of the U.S. Environmental Protection Agency (Defendant, EPA, or
Administrator). The Complaint alleges that the Defendant has failed to promulgate and
publish designations for the revised sulfur dioxide (SO
2
) National Ambient Air Quality Standard
(NAAQS). Comp. 1, 32. The Complaint further alleges that the Defendants failure to take
such action constitutes a failure to perform a nondiscretionary duty under the Clean Air Act
(CAA). Comp. 1, 32, 37.
The CAA establishes a comprehensive national program that makes the States and the
Federal Government partners in the struggle against air pollution. General Motors Corp. v.
United States, 496 U.S. 530, 532 (1990). The CAA charges EPA with setting the NAAQS,
which prescribe the maximum permissible levels of common pollutants in the ambient air. 42
U.S.C. 7409(a). The States, however, retain the primary responsibility for choosing how to
attain those standards within their borders. Id. 7407(a) (Each State shall have the primary
responsibility for assuring air quality within the entire geographic area comprising such State . . .
.). The States implement the NAAQS within their borders through State Implementation Plans
(SIPs). Through the SIP, each State has broad discretion to choose which sources within its


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borders will reduce emissions, and how to allocate the reductions. See Union Elec. Co. v. EPA,
427 U.S. 246, 249-50 (1976).
The State of North Carolina, through the North Carolina Department of Environment and
Natural Resources (NCDENR) and its Division of Air Quality (DAQ), implements and
enforces the States SIP. DAQ oversees the implementation and enforcement of the new and
revised NAAQS under the CAA, including the issuance of preconstruction permits to new or
expanding facilities within the State. (Holman Decl. 5) (Attached as Exhibit A)
Section 107(d)(1)(A) of the CAA states that within one year after promulgation of new or
revised NAAQS, the Governor of each State shall submit to the Administrator of EPA a list
designating all areas (or portions thereof) in the State as nonattainment, attainment, or
unclassifiable for that NAAQS. 42 U.S.C. 7407(d)(1)(A). An area is designated
nonattainment for a particular pollutant if the ambient levels of that pollutant exceed the
respective NAAQS. In an attainment area, the air quality comports with the NAAQS. An area
is unclassifiable if it cannot be classified on the basis of available information as meeting or
not meeting the [NAAQS]. Id. Section 107(d)(1)(B) of the CAA provides that upon
promulgation or revision of a NAAQS, the Administrator shall promulgate the designation of
all areas submitted by the Governor of each State under 107(d)(1)(A) as expeditiously as
practicable, but in no case later than two years from the date of promulgation of the new or
revised [NAAQS]. Id. 7407(d)(1)(B)(i). The Administrator must publish a notice in the
Federal Register promulgating such designations. Id. 7407(d)(2)(A). The deadline for
promulgating these designations may be extended for up to one year in the event the
Administrator determines that additional information is needed. Id.
How the State carries out its implementation program depends in part on how the areas
of the State are designated. For example, for each nonattainment area the State is required to


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devise and implement a strategy to achieve pollution reductions that are calibrated to bring the
area into attainment. See e.g., 42 U.S.C. 7501-7509. No such pollution reduction requirements
apply in attainment and unclassifiable areas. Illustrative of this distinction are the CAAs
preconstruction permitting programs. Preconstruction permitting for new and significantly
modified sources in attainment/unclassifiable areas falls under the Prevention of Significant
Deterioration of Air Quality (PSD) program. 42 U.S.C. 7475-7479. However,
preconstruction permitting in nonattainment areas falls under the nonattainment new source
review (NNSR) program. Id. 7503. The NNSR program requires much stricter pollution
controls in nonattainment areas than does the PSD program in attainment/unclassifiable areas.
See Catawba County v. EPA, 571 F.3d 20, 26 (D.C. Cir. 2009).
On June 2, 2010, EPA promulgated a revision of the primary NAAQS for SO
2
. 75 Fed.
Reg. 35,520 (June 22, 2010) (revised SO
2
NAAQS). This promulgation triggered the States
obligation to submit designations by June 3, 2011. North Carolina complied with this obligation.
(Holman Decl. 8) The promulgation of the revised SO
2
NAAQS also triggered the
Administrators nondiscretionary duty to promulgate area designations by no later than June 2,
2012. On August 3, 2012, EPA announced in the Federal Register that it was extending the
deadline for promulgating area designations for the revised SO
2
NAAQS by one year. 77 Fed.
Reg. 46,295 (Aug. 3, 2012). The notice stated that, [w]ith this extension, the EPA is now
required to complete . . . designations for this NAAQS by June 3, 2013. Id.
On August 5, 2013, EPA published in the Federal Register final air quality designations
for the SO
2
NAAQS for only 29 areas, encompassing parts of only sixteen states. 78 Fed. Reg.
47,191 (Aug. 5, 2013). EPA only promulgated designations for areas that included air quality
monitors showing nonattainment. EPA did not designate any areas as attainment even if
monitors in those areas showed attainment. EPA did not designate any areas in North Carolina


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including areas with monitored attainment for the SO
2
NAAQS. At the time of the filing of
this Motion, EPA continues to fail to designate any areas for the SO
2
NAAQS within the State of
North Carolina.
III. NORTH CAROLINA IS ENTITLED TO INTERVENE
AS A MATTER OF RIGHT.

A. Legal Standard
Fed. R. Civ. P. 24(a)(2) traditionally receives liberal construction in favor of applicants
for intervention. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). Rule 24(a)(2)
provides that on a timely motion, the Court must permit anyone to intervene who claims an
interest relating to the property or transaction that is the subject of this action, and is so situated
that disposing of the action may impair or impede the movants ability to protect its interest,
unless existing parties adequately represent that interest.
A party seeking to intervene as of right must meet four requirements: (1) the
applicant must timely move to intervene; (2) the applicant must have a
significantly protectable interest relating to the property or transaction that is the
subject of the action; (3) the applicant must be situated such that the disposition of
the action may, as a practical matter, impair or impede the partys ability to
protect that interest; and (4) the applicants interest must not be adequately
represented by existing parties.

Arakaki, 324 F.3d at 1083; Fed. R. Civ. P. 24(a)(2). North Carolina meets these four
requirements.
B. North Carolina Has Timely Moved to Intervene.
The instant motion was filed at a very early stage of the proceeding without any
improper delay, and without causing any prejudice to the existing parties. The Ninth Circuit has
directed that courts be lenient in applying the timeliness requirement where, as here, the
intervention is sought as a matter of right. U.S. v. State of Oregon, 745 F.2d 550, 552 (9th Cir.
1984). The Courts leniency is applied after considering three factors: (1) the stage of the


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proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the
reason for and length of the delay. U.S. ex rel. McGough v. Covington Technologies Co., 967
F.2d 1391, 1394 (9th Cir. 1992). All three factors militate in favor of finding that North
Carolinas motion is timely. North Carolina has filed its motion at a very early stage of the
proceeding. The Defendant has not yet filed a responsive pleading to Plaintiffs complaint and
the Court has not yet held the initial case management conference. Order August 26, 2013,
DKT# No. 8. Furthermore, although the parties may not favor the intervention of another party
with a distinct interest, they will not suffer any prejudice from the timing of North Carolinas
motion. See Mille Lac Band of Chippewa Indians v. State of Minn. 989 F.2d 994, 999 (8th Cir.
1993) (distinguishing the type of prejudice that always exists when a party with an adverse
interest seeks intervention from prejudice caused solely by the timing of the motion).
C. North Carolina Has a Significant Protectable Interest Relating to the Issues.
The Ninth Circuit has held that the requirement of a significant protectable interest is
satisfied when the interest is protectable under some law, and . . . there is a relationship between
the legally protected interest and the claims at issue. Arakaki, 324 F.3d at 1084 (quoting Sierra
Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)). The Courts inquiry is practical, and [n]o
specific legal or equitable interest need be established. Forest Conservation Council v. U.S.
Forest Serv. 66 F.3d 1489, 1493 (9th Cir. 1995), abrogated on other grounds by Wilderness Soc.
v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). The Ninth Circuit has held that the interest
test is primarily a guide to disposing of lawsuits by involving as many apparently concerned
persons as is compatible with efficiency and due process. In re Estate of Ferdinand E. Marcos
Human Rights Litig., 536 F.3d 980, 985 (9th Cir. 2008) (quoting United States v. City of Los
Angeles, 288 F.3d 391 (9th Cir. 2002)).


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North Carolina has a protectable interest in insuring that EPA carries out its
nondiscretionary duty of designating areas in North Carolina for the revised SO
2
NAAQS as
expeditiously as possible, but in no case later than Congress explicit deadline. As stated above,
North Carolina has been charged under the CAA with ensuring that the NAAQS are met in a
timely manner and maintained within its borders.
North Carolina has taken great strides in reducing SO
2
emissions. Fossil fuel-fired
electric utility steam generating units (EGUs) are the single largest category of SO
2
emissions
sources in the United States, as well as here in North Carolina. In June 2002, North Carolina
enacted landmark multi-pollutant legislation known as the Clean Smokestacks Act (NCCSA)
which requires significant reductions of SO
2
emissions from the investor-owned EGUs those
owned by Duke Energy Carolinas, LLC (Duke Energy) and Progress Energy Carolinas, Inc.
(Progress) in North Carolina. (These companies have since merged and are now collectively
known as Duke Energy.) Under the NCCSA, coal-fired power plants were required to reduce
SO
2
emissions by 73% by 2013 relative to 1998 emission levels. See N.C. Gen. Stat. 143-
215.107D. The power companies have gone beyond the requirements of the NCCSA. By
calendar year 2012, Duke Energy and Progress had reduced SO
2
emissions by 89% relative to
1998 emission levels. The reductions required by the NCCSA must be achieved through actual
reductions at the EGUs, not by buying or trading emissions credits from utilities in other states.
Additionally, the EGUs have entered into binding agreements with the State barring them from
selling credits for the reductions achieved as a result of the NCCSA, ensuring that utilities in
other States do not negate gains achieved in North Carolina. (Holman Decl. 6,7)
Additionally, with regard to the revised SO
2
NAAQS that is at issue in this case, North
Carolina initially had one monitor in the State that exceeded the standard. NCDENR worked
closely with sources in the area to determine which sources were causing or contributing to the


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exceedance. NCDENR amended air quality permits for three facilities to reduce their SO
2

emissions. As a result, North Carolina was able to demonstrate attainment at this monitor with
data for the three-year period of 2010-2012, which is the time interval specified by EPA for use
in the designation process. 40 C.F.R. 50.17. With that situation resolved, all five SO
2

monitors in North Carolina are attaining the SO
2
NAAQS. Thus, North Carolina requested that
the five counties with monitored attainment be designated as attainment, that 32 counties be
designated as attainment due to having no or only small SO
2
sources, and that the remaining 63
counties be designated as unclassifiable/attainment. (Holman Decl. 9)
On February 6, 2013, EPA acknowledged that no monitors showed violations of the SO
2

NAAQS in North Carolina. EPA stated that it was not yet prepared to propose designation
action in North Carolina, and therefore, in direct contravention of the CAA, indicated that it was
deferring action to designate areas in North Carolina. EPA stated that it anticipated that it
would proceed with designation action in North Carolina once additional data are gathered
pursuant to our comprehensive implementation strategy. On April 8, 2013, NCDENRs
Secretary responded to EPA, noting that there is no deferral option for designations under the
CAA and requesting that EPA designate all areas in North Carolina as
unclassifiable/attainment. (Holman Dec. 10)
North Carolina is prejudiced by EPAs failure to follow the requirements of the CAA.
North Carolina is charged with submitting a SIP that provides for implementation, maintenance,
and enforcement of the SO
2
NAAQS. 42 U.S.C. 7410(a). North Carolinas efforts to
implement the requirements of the Clean Air Act are adversely impacted by EPAs failure to
promulgate designations. EPAs failure to designate areas as required by the CAA subjects
North Carolina to a detrimental uncertainty that will negatively affect the States economy,
private development, and the public interest. (Holman Decl. 16)


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D. Disposition of the Action May Impair or Impede North Carolinas Ability to
Protect its Interests.
An applicant satisfies the requirement that disposition of the action may, as a practical
matter, impair or impede the partys ability to protect that interest if the resolution of the
plaintiffs claims actually will affect the applicant. Arakaki, 324 F.3d at 1084 (quoting Sierra
Club, 995 F.2d at 1484). [I]f an absentee would be substantially affected in a practical sense
by the determination made in an action, he should, as a general rule, be entitled to intervene.
Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 822 (9th Cir. 2001) (quoting Fed. R. Civ.
P. 24 advisory committee notes).
The resolution of the Plaintiffs claims will affect North Carolina. Should the Plaintiffs
prevail, any resolution of the Plaintiffs claims, either by order or settlement, would presumably
provide a directive as to when EPA must take action on North Carolinas SO
2
NAAQS
attainment designations. Furthermore, North Carolinas interests may also be adversely affected
by such a resolution to the extent that it includes substantive requirements for making
designations.
North Carolina has an interest in assuring that any resolution of this matter is limited to
requiring EPA to immediately promulgate and publish SO
2
designations. On February 6, 2013,
the same day EPA notified North Carolina and other states of its decision to defer
designations, EPA published a document entitled Next Steps for Area Designations and
Implementation of the [SO
2
NAAQS]. The document purports to describe EPAs plans for
completing the designations, and importantly notes that the strategy for doing so anticipates
further rulemaking and development of guidance by EPA. (Holman Decl. 12) EPA has
issued numerous guidance documents and white papers regarding implementation of the SO
2

NAAQS since its promulgation in 2010, which specifically address the approach for determining


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whether an area is or is not meeting the 1-hour SO
2
NAAQS. Due to limitations in the scope of
the ambient monitoring network, EPA proposed some combination of air quality modeling and
monitoring. (Holman Decl. 12) North Carolina has been an active participant in commenting
on EPAs various proposals, and has consistently taken the position that, (1) as EPA has
suggested, any such implementation must be adopted through rulemaking, and not informal
guidance documents, and (2) that modeling should not be used as the basis for designating an
area as nonattainment. Plaintiff Sierra Club has submitted comments to EPA suggesting that
EPA must designate several areas, including an area in North Carolina, as nonattainment based
upon the very modeling that North Carolina has concluded should never be used to designate an
area as nonattainment. (Holman Decl. 13)
On September 3, 2013, the Director of DAQ, Sheila Holman, wrote a letter to the EPA
Administrator expressing her concerns regarding this lawsuit. Ms. Holman explained that North
Carolina has a direct interest in the issue addressed in this lawsuit, and that it was her
understanding that EPA and Sierra Club were discussing terms of a possible settlement regarding
designations. Ms. Holman indicated that it was important that all stakeholders, including North
Carolina, be included in any settlement discussions and be given a chance to provide input into
any proposed settlement agreement. (Holman Decl. 15)
North Carolina is concerned that the current Plaintiffs will seek, and the Defendant will
agree to, a resolution to this case that involves not only the timing of the NAAQS designations,
but also sets forth requirements regarding how EPA will make the designations themselves. As
noted above, EPA has recently indicated its interest in dramatically changing its decades-old
methodology for promulgating designations. Enshrining such a policy shift in a consent decree
would allow EPA to bypass notice-and-comment rulemaking procedures, prejudicing the rights
of sovereign States.


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E. North Carolinas Interests Are Not Adequately Represented by the Existing
Plaintiffs.

An applicants burden in showing inadequate representation is minimal, and the
applicant need only show that representation of its interests by existing parties may be
inadequate. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). In
determining whether the prospective intervenors interest will be adequately represented by an
existing party, courts consider:
(1) whether the interest of a present party is such that it will undoubtedly make all
the intervenors arguments; (2) whether the present party is capable and willing to
make such arguments; and (3) whether the would-be intervenor would offer any
necessary elements to the proceedings that other parties would neglect.

Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996). [I]t is not the
Applicants burden at this stage in the litigation to anticipate specific differences in trial strategy.
It is sufficient for Applicants to show that, because of the difference in interests, it is likely that
Defendants will not advance the same arguments as Applicants. Sw. Ctr. for Biological
Diversity, 268 F.3d at 824.
As explained above, the States are in the unique position of being charged under the CAA
with ensuring that the NAAQS are met and maintained within their borders. Therefore, North
Carolina may have substantially different views on a timeline relating to a potential remedy that
may not be adequately represented by the Plaintiffs or the Defendant. Furthermore, North
Carolina may also have substantially different views as to whether any potential settlement
between the parties should go beyond addressing the timing of the publication of the SO
2

NAAQS designations in the Federal Register. Should any such resolution address the
substantive designations or the methodology used for making those designations, North Carolina
does not agree with Plaintiff Sierra Clubs position that any areas in North Carolina may be
designated as nonattainment based upon modeling. Instead, North Carolina believes that in light


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of EPAs admission that the areas for which it has deferred designation cannot be classified
on the basis of available information as meeting or not meeting the [NAAQS], EPA must
designate those areas as unclassifiable in accordance with the CAA. 42 U.S.C.
7407(d)(1)(A)(ii). (Holman Decl. 17)
Therefore, North Carolina has met the test for intervention as a matter of right and should
be allowed to intervene.
IV. ALTERNATIVELY, NORTH CAROLINA IS ENTITLED TO INTERVENE
ON A PERMISSIVE BASIS.

In the alternative, North Carolina should be allowed to intervene in this action on a
permissive basis. Fed. R. Civ. P. 24(b) states that the court may grant permissive intervention
on a timely motion to anyone who has a claim or defense that shares with the main action a
common question of law or fact. North Carolina clearly meets these requirements.
As discussed above, the instant motion is timely. In addition, North Carolinas claims
share the same nucleus of laws and facts as the Plaintiffs action. If there is a common
question of law or fact, the requirement of the rule has been satisfied. Kootenai Tribe of Idaho
v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002) (quoting 7C Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Fed. Prac. & Proc. 1911, 357-63 (2d ed. 1986), abrogated on other
grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). On August 2,
2013, pursuant to section 304(b)(2) of the CAA, 42 U.S.C. 7604(b)(2), North Carolina gave
notice to Defendant of North Carolinas intent to sue Defendant for failure to designate areas for
the 2010 SO
2
NAAQS the very issue that Plaintiffs have brought before this Court. (Holman
Decl. 14) North Carolina has a significant interest in the outcome of this litigation, and its
participation would significantly contribute to the just and equitable adjudication of the legal
questions presented. Spangler v. Pasadena City Bd. of Educ. 552 F.2d 1326, 1329 (9th Cir.


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1977), because North Carolina brings to the litigation the perspective of a party with unique
status under the statutes at issue. Thus, North Carolinas involvement in this litigation would
assist and not prejudice or delay the adjudication of the original parties rights.
The Ninth Circuit has previously stated that, in addition to the requirements listed under
Rule 24, an applicant seeking permissive intervention must also show that the court has an
independent basis for jurisdiction over the applicants claims. Nw. Forest Resource Council, 82
F.3d at 839. However, Ninth Circuit case law is not uniform as to whether an independent
jurisdictional basis is an absolute requirement for permissive intervention. In Kootenai Tribe of
Idaho v. Veneman, 313 F.3d 1094, 1109 (9th Cir. 2002), the court stated that permissive
intervention generally only requires a common question of law or fact between the proposed
intervenors claim and the main action. The court, however, found that in the unusual context
where only the intervenors appealed, the court was required to find independent jurisdictional
grounds for the defendant-intervenors appeal. Id. (emphasis added). This explanation in
Kootenai indicates that showing an independent jurisdictional basis is not necessary in the more
typical context, such as the case here, where an applicant seeks to intervene at the district court
level.
North Carolina should not be required to demonstrate an independent basis for this
Courts jurisdiction to support its motion to intervene in this case. North Carolina will not be
asserting additional claims beyond those raised in the Plaintiffs complaint. Section 304 of the
CAA makes it clear that the district court has jurisdiction over actions, such as the case sub
judice, against the Administrator of the EPA where there is an alleged failure of the
Administrator to perform a nondiscretionary duty under the CAA. 42 U.S.C. 7604(a)(2).
However, to the extent that North Carolina is required to demonstrate a jurisdictional basis


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independent of that provided under Section 304 of the CAA, such basis is provided in 28 U.S.C.
1367(a) which states the following:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.

The only claim that North Carolina will pursue herein against the Defendant is, in
essence, the same as that pursued by the Plaintiffs (i.e., the Defendant failed to promulgate and
publish area designations for the revised SO
2
NAAQS). Therefore, North Carolina has satisfied
all the requirements for permissive intervention.
As required by Fed. R. Civ. P. 24(c), this motion is accompanied by a pleading that sets
out the claim or defense for which intervention is sought, which is attached as Exhibit B.
V. CONCLUSION
For the foregoing reasons, the State of North Carolina respectfully requests that the Court
grant its motion to intervene.
DATED: September 24, 2013
Respectfully submitted,
ROY COOPER
Attorney General

By: /s/ Marc Bernstein
Marc Bernstein
N.C. Department of Justice

/s/ Michael N. Westheimer
Michael N. Westheimer
Buchalter Nemer, PC

Attorneys for the State of North Carolina



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CERTIFICATE OF SERVICE
I hereby certify that on this the 24th day of September, 2013, I electronically filed the
foregoing Proposed Plaintiff-Intervenor North Carolinas Notice of Motion and Motion to
Intervene and Memorandum of Points and Authorities in Support of Motion to Intervene with the
Court using the ECF system and served notice by first-class mail return-receipt requested on the
following parties:

Regina McCarthy
Administrator of the United States Environmental Protection Agency
U.S. EPA
William Jefferson Clinton Building
1200 Pennsylvania Avenue
N.W., Washington, DC 20460

United States Environmental Protection Agency
William Jefferson Clinton Building
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Eric Holder
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Melinda Haag
United States Attorney for the Northern District of California
Federal Courthouse
Eleventh Floor
450 Golden Gate Avenue
San Francisco, CA 94102

/s/ Marc Bernstein
Marc Bernstein


EXHIBIT A
Case3:13-cv-03953-SI Document16-1 Filed09/24/13 Page1 of 7

Affidavit and Declaration in Support of the State of CASE NO.:4:13-cv-03953-KAW
North Carolinas Motion to Intervene PAGE NO. 1 OF 6
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Marc Bernstein

(motion for admission to practice pro hac vice pending)
P.O. Box 629
Raleigh, NC 27602
Phone Number:(919)716-6956
Fax Number: (919) 716-6764

Buchalter Nemer, PC
Phone Number: (415) 227-0900
Fax Number: (415) 904-3111

Attorneys for the State of North Carolina, Proposed Plaintiff-Intervenor




Plaintiffs,
and


v.

Environmental Protection Agency
Defendant.

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Case No.4:13-cv-03953-KAW

AFFIDAVIT & DECLARATION
OF SHEILA HOLMAN IN
SUPPORT OF THE STATE
OF NORTH CAROLINAS
MOTION TO INTERVENE

SHEILA HOLMAN, being duly sworn, deposes and says:
1. I, Sheila Holman, am over the age of twenty-one (21) years and am competent to
testify. I make this Declaration for all purposes permitted by law.

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2. Except where qualified, I have personal knowledge of the facts hereinafter stated
or I have obtained such knowledge after review of DAQs books and records as they are kept in
the ordinary course of business.
3. I am the Director of the Division of Air Quality (DAQ), North Carolina
Department of Environment and Natural Resources (NCDENR). I was Chief of the
Attainment Planning Branch at DAQ from January 1993 until August 2002. I was the Assistant
Chief of the Planning Section from August 2002 through June 2003, when I became Chief of the
Planning Section. I became Deputy Director of DAQ in August of 2008, in which position I
remained until I became the Director in June of 2010. From January 1988 to January 1993 I was
an Environmental Engineer with the United States Environmental Protection Agency (EPA).
As part of my responsibilities at EPA, I was one of the primary authors of the General Preamble
for Implementation of Title I of the Clean Air Act of 1990. I graduated from North Carolina
State University with a B.S. in Chemical Engineering.
4. My responsibilities at DAQ include overseeing the State of North Carolinas
efforts to control emissions of criteria air pollutants such as sulfur dioxide (SO
2
), in order to
achieve the purposes of North Carolinas pollution control laws and the Clean Air Act (CAA).
5. DAQ oversees the implementation and enforcement of the new and revised
national ambient air quality standards (NAAQS) under the CAA, including the issuance of
preconstruction permits to new or expanding facilities within the State.
6. North Carolina has taken great strides in reducing SO
2
emissions. Fossil fuel-
fired electric utility steam generating units (EGUs) are the single largest category of SO
2

emissions sources in the United States, as well as here in North Carolina. In June 2002, North
Carolina enacted landmark multi-pollutant legislation known as the Clean Smokestacks Act
(NCCSA) which requires significant reductions of SO
2
emissions from the investor-owned
EGUs those owned by Duke Energy Carolinas, LLC (Duke Energy) and Progress Energy

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Carolinas, Inc. (Progress). (These companies have since merged and are now collectively
known as Duke Energy.)
7. Under the NCCSA, coal-fired power plants were required to reduce SO
2

emissions by 73% by 2013 relative to 1998 emission levels. The power companies have gone
beyond the requirements of the NCCSA. By calendar year 2012, Duke Energy and Progress had
reduced SO
2
emissions by 89% relative to 1998 emission levels. The reductions required by
NCCSA must be achieved through actual reductions at the EGUs, not by buying or trading
emissions credits from utilities in other states. Additionally, the EGUs have entered into binding
agreements with the State barring them from selling credits for the reductions achieved as a
result of the NCCSA, ensuring that utilities in other states do not negate gains achieved in North
Carolina. N.C. Gen. Stat. 143-215.107D.
8. On June 2, 2010, EPA promulgated a revision of the primary NAAQS for SO
2
.
North Carolina complied with its obligation to submit designations by June 3, 2011,
recommending one area in part of one county be designated as nonattainment, forty-three
counties be designated attainment, and 63 counties be designated as unclassifiable/attainment.
9. While North Carolina initially had one monitor in the state that exceeded the
standard, NCDENR worked closely with sources in the area to determine which sources were
causing or contributing to the exceedance. NCDENR amended air quality permits for three
facilities to reduce their SO
2
emissions. As a result, North Carolina was able to demonstrate
attainment at this monitor with data for the three-year period of 2010-2012, which is the time
interval specified by EPA for use in the designation process. With that situation resolved, all
five SO
2
monitors in North Carolina are attaining the SO
2
NAAQS. Thus, North Carolina
requested that the five counties with monitored attainment be designated as attainment, that 32
counties be designated as attainment due to having no or only small SO
2
sources, and that the
remaining 63 counties be designated as unclassifiable/attainment.

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10. On February 6, 2013, EPA acknowledged that no monitors showed violations of
the SO
2
NAAQS in North Carolina, but stated that it was not yet prepared to propose
designation action in North Carolina, and was therefore deferring action to designate areas in
North Carolina. EPA stated that it anticipated that it would proceed with designation action in
North Carolina once additional data are gathered pursuant to our comprehensive implementation
strategy. On April 8, 2013, NCDENRs Secretary responded to EPA, noting that there is no
deferral option for designations under the CAA, and requesting that EPA designate all areas in
North Carolina as unclassifiable/attainment.
11. On August 5, 2013, EPA published in the Federal Register final air quality
designations for the SO
2
NAAQS for only 29 areas, encompassing sixteen states. EPA did not
designate any areas in North Carolina including areas with monitored attainment for the SO
2

NAAQS. At the time of the signing of this Declaration, EPA continues to fail to designate any
areas for the SO
2
NAAQS within the State of North Carolina.
12. On February 6, 2013, the same day EPA notified North Carolina and other states
of its decision to defer designations, EPA published a document entitled Next Steps for Area
Designations and Implementation of the [SO
2
NAAQS]. The document purports to describe
EPAs plans for completing the designations, and importantly notes that the strategy for doing so
anticipates further rulemaking and development of guidance by EPA. EPA has issued
numerous guidance documents and white papers regarding implementation of the SO
2
NAAQS
since its promulgation in 2010, which specifically address the approach for determining whether
an area is or is not meeting the 1-hour SO
2
NAAQS. Due to limitations in the scope of the
ambient monitoring network, EPA proposed some combination of modeling and monitoring.
13. North Carolina has been an active participant in commenting on EPAs various
proposals, and has consistently taken the position that, (1) as EPA has suggested, any such
implementation must be adopted through rulemaking, and not informal guidance documents, and

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(2) that modeling should not be used as the basis for designating an area as nonattainment.
Plaintiff Sierra Club has submitted comments to EPA suggesting that EPA must designate
several areas, including an area in North Carolina, as nonattainment based upon the very
modeling that North Carolina has concluded should never be used to designate an area as
nonattainment.
14. On August 2, 2013, pursuant to 42 U.S.C. 7604(b)(2), North Carolina gave
notice to Defendant of North Carolinas intent to sue EPA for failure to designate areas for the
2010 SO
2
NAAQS.
15. On September 3, 2013, I wrote a letter to EPA Administrator Gina McCarthy
expressing my concerns regarding the lawsuit filed by Sierra Club. I explained that North
Carolina had a direct interest in the issue addressed in the lawsuit, and that it was my
understanding that EPA and Sierra Club were discussing terms of a possible settlement regarding
designations. I indicated that it was important that all stakeholders, including North Carolina, be
included in any settlement discussions and be given a chance to provide input into any proposed
settlement agreement.
16. North Carolinas efforts to implement the requirements of the Clean Air Act are
adversely impacted by EPAs failure to promulgate designations. EPAs failure to designate
areas as required by the CAA subjects North Carolina to a detrimental uncertainty that will
negatively affect the States economy, private development and the public interest.
17. North Carolina believes that in light of EPAs admission that the areas for which
it has deferred designation cannot be classified on the basis of available information as
meeting or not meeting the [NAAQS], EPA must designate those areas as unclassifiable in
accordance with the CAA. 42 U.S.C. 7407(d)(1)(A)(ii).


EXHIBIT B

North Carolinas Complaint in Intervention Case No. 4:13-cv-03953
1

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Marc Bernstein (motion for admission to practice pro hac vice pending)
P.O. Box 629
Raleigh, NC 27602
Phone Number: (919) 716-6956
Fax Number: (919) 716-6764

Buchalter Nemer, PC
Phone Number: (415) 227-0900
Fax Number: (415) 904-3111

Attorneys for the State of North Carolina, Plaintiff-Intervenor


Plaintiffs,
and


v.

Environmental Protection Agency,
Defendant.

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Case No: 4:13-cv-03953 (KAW)

PROPOSED PLAINTIFF-INTERVENOR
NORTH CAROLINAS COMPLAINT
IN INTERVENTION

(Clean Air Act, 42 U.S.C. 7401 et seq.)


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INTRODUCTION

1. The State of North Carolina (Plaintiff) files this suit to compel the Administrator of the
U.S. Environmental Protection Agency (Administrator or EPA), to take action mandated by
the Clean Air Act, 42 U.S.C. 7401 et seq. (CAA) to designate areas within North Carolina as
nonattainment or attainment/unclassifiable for the revised National Ambient Air Quality
Standard (NAAQS) for sulfur dioxide (SO
2
). On June 2, 2010, EPA promulgated a revision of
the primary NAAQS for SO
2
(revised SO
2
NAAQS). 75 Fed. Reg. 35,520 (June 22, 2010).
This promulgation triggered a nondiscretionary duty for EPA to designate areas throughout the
country as attainment/unclassifiable or nonattainment with respect to the revised SO
2
NAAQS.
EPA did not designate any areas in North Carolina for the revised SO
2
NAAQS. At the time of
the filing of this Complaint, EPA continues to fail to designate any areas for the revised SO
2

JURISDICTION
2. This is an action to compel the Defendant to perform acts or duties under the CAA that
are not discretionary. This Court has jurisdiction pursuant to 42 U.S.C. 7604(a). This Court
also has jurisdiction because the claim arises under the laws of the United States, namely the
CAA, and because the United States is a defendant. 28 U.S.C. 1331, 1346.
3. On June 4, 2013 and June 25, 2013, pursuant to 42 U.S.C. 7604(b)(2), Plaintiffs Sierra
Club and Natural Resources Defense Council sent notice to the Defendant of their intent to
pursue legal action due to the Administrators failure to perform the nondiscretionary duty under
the CAA. The sixty-day period indicated in 42 U.S.C. 7604 expired and the Administrator has
not performed the nondiscretionary duties under the CAA as complained of herein. The
Plaintiffs have satisfied the requirements of 42 U.S.C. 7604(b)(2).

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4. As shown more fully by the facts set forth below, this case presents a case or controversy
within the meaning of Article III of the United States Constitution, and, more particularly, the
Plaintiff North Carolina has standing to pursue this claim.
VENUE
5. Venue is proper in this district pursuant to 42 U.S.C. 7604(a) and 28 U.S.C. 1331,
1391. The relief requested by Plaintiff is authorized pursuant to 42 U.S.C. 7604 and 28 U.S.C.
2201, 2202, and 1361.
INTRADISTRICT ASSIGNMENT
6. This action does not arise in any particular Division of the Court. However, because this
is a Complaint in Intervention in an existing matter -- Sierra Club v. Regina McCarthy, Case No.
4:13-cv-03953 -- that is assigned to the San Francisco/Oakland Division of this Court, for the
efficient administration of justice and the convenience of the parties, the matter should be
assigned to the same Division.
PARTIES
7. The Plaintiff is a sovereign State. The Plaintiff is also a person as that term is used in
42 U.S.C. 7604(a). Id. 7602(d), (e).
8. Defendant Regina McCarthy is the Administrator of the United States Environmental
Protection Agency. In that role, Administrator McCarthy has been charged by Congress with the
duty to administer the Clean Air Act, including the mandatory duties at issue in this case.
STATEMENT OF LEGAL ISSUES
9. The CAA requires the EPA to promulgate NAAQS for certain criteria pollutants in the
ambient air, such as SO
2
. 42 U.S.C. 7408(a)(1).
10. The CAA states that within one year after promulgation of new or revised NAAQS, the
Governor of each State shall submit to the Administrator of EPA a list designating all areas (or

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portions thereof) in the State as nonattainment, attainment, or unclassifiable for that
NAAQS. 42 U.S.C. 7407(d)(1)(A).
11. Upon promulgation or revision of a NAAQS, the Administrator shall promulgate the
designation of all areas submitted by the Governor of each State as expeditiously as
practicable, but in no case later than two years from the date of promulgation of the new or
revised [NAAQS]. Id. 7407(d)(1)(B)(i). The Administrator must publish a notice in the
Federal Register promulgating such designations and the deadline for doing so may be extended
for up to one year in the event the Administrator determines that additional information is
needed. Id. 7407(d)(2)(A).
STATEMENT OF FACTS
12. On June 2, 2010, EPA promulgated a revision of the primary NAAQS for SO
2
. 75 Fed.
Reg. 35,520 (June 22, 2010). This promulgation triggered the States obligation to submit
designations by June 3, 2011.
13. North Carolina complied with this obligation and submitted designations for SO
2
by June
3, 2011. In particular, North Carolina requested that its five counties with monitored attainment
be designated as attainment, that 32 counties be designated as attainment due to having no or
only small SO
2
sources, and that the remaining 63 counties be designated as
unclassifiable/attainment.
14. The promulgation of the revised SO
2
NAAQS also triggered the Administrators
nondiscretionary duty to promulgate designations of nonattainment or attainment/unclassifiable
for the revised SO
2
NAAQS for all areas pursuant to CAA Section 107(d)(1)(B) by no later than
June 2, 2012, and to publish a notice in the Federal Register promulgating those designations. 42
U.S.C. 7407(d)(1)(B)(i).

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15. On August 3, 2012, EPA announced in the Federal Register that it was using its authority
under Section 107(d)(1)(B)(i) of the CAA to extend the deadline for promulgating area
designations for the revised SO
2
NAAQS by one year. 77 Fed. Reg. 46,295 (Aug. 3, 2012). The
notice stated that, [w]ith this extension, the EPA is now required to complete . . . designations
for this NAAQS by June 3, 2013. Id.
16. On February 6, 2013, EPA acknowledged that no monitors showed violations of the SO
2

NAAQS in North Carolina. EPA stated that it was not yet prepared to propose designation
action in North Carolina, and therefore, in direct contravention of the CAA, indicated that it was
deferring action to designate areas in North Carolina. EPA stated that it anticipated that it
would proceed with designation action in North Carolina once additional data are gathered
pursuant to our comprehensive implementation strategy. On April 8, 2013, NCDENRs
Secretary responded to EPA, noting that there is no deferral option for designations under the
CAA and requesting that EPA designate all areas in North Carolina as attainment/unclassifiable.
On August 2, 2013, pursuant to Section 304(b)(2) of the CAA, 42 U.S.C. 7604(b)(2), North
Carolina gave notice to Defendant of North Carolinas intent to sue Defendant for failure to
designate areas for the revised SO
2
NAAQS.
17. On August 5, 2013, EPA published in the Federal Register final air quality designations
for the revised SO
2
NAAQS for only 29 areas, encompassing parts of only sixteen states. 78
Fed. Reg. 47,191 (Aug. 5, 2013). EPA only promulgated designations for areas that included air
quality monitors showing nonattainment. EPA did not designate any areas as attainment even if
monitors in those areas showed attainment. EPA did not designate any areas in North Carolina
including areas with monitored attainment for the revised SO
2
NAAQS.
18. At the time of the filing of this Complaint, EPA continues to fail to designate any areas
for the revised SO
2

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19. North Carolina is prejudiced by EPAs failure to follow the requirements of the CAA.
North Carolina is charged with submitting a SIP that provides for implementation, maintenance,
and enforcement of the SO
2
NAAQS. 42 U.S.C. 7410(a). North Carolinas efforts to
implement the requirements of the Clean Air Act are adversely impacted by EPAs failure to
promulgate designations. EPAs failure to designate areas as required by the CAA subjects
North Carolina to a detrimental uncertainty that will negatively affect the States economy,
private development, and the public interest.
20. For all of the foregoing reasons, the Administrator is in violation of the nondiscretionary
duty imposed by 42 U.S.C. 7407(d)(1) and (d)(2).
REQUEST FOR RELIEF
WHEREFORE, the State of North Carolina respectfully requests that the Court:
1. Declare that the Administrator is in violation of the Clean Air Act with regard to her
failure to perform each mandatory duty listed above;
2. Issue a mandatory injunction requiring the Administrator to perform her mandatory
duties by a certain date set by the Court;
3. Retain jurisdiction of this matter for purposes of enforcing the Courts order;
4. Grant North Carolina its reasonable costs of litigation, including attorneys and expert
witness fees; and
5. Grant such further relief as the Court deems proper.


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DATED: September 24, 2013
Respectfully submitted,

ROY COOPER
Attorney General

By: /s/ Marc Bernstein
Marc Bernstein
P.O. Box 629
Raleigh, NC 27602
Phone Number: (919)716-6956
Fax Number: (919) 716-6764

By: /s/ Michael N. Westheimer
Michael N. Westheimer
(State Bar No. 178938)
Buchalter Nemer, PC
Phone Number: (415) 227-0900
Fax Number: (415) 904-3111
E-mail Address:
[email protected]

Counsel for the Proposed Plaintiff
Intervenor State of North Carolina


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Marc Bernstein (Motion for admission pro hac vice pending)

Special Deputy Attorney General

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