On March 17, 2015, the D.C. District Court denied the Public Service Company of New Hampshire’s (PSNH’s) motion to intervene in a Sierra Club-initiated proceeding urging the U.S. EPA to object to a Title V permit for one of PSNH’s generating stations. Even though one of PSNH’s operating permits is the subject of the lawsuit, the Court reasoned that PSNH did not have authority to intervene. “Because this suit involves only the timing of EPA’s decision on the Sierra Club’s petition, PSNH’s interests in the petition’s substance do not satisfy this circuit’s requirement for intervention.”
Under the Clean Air Act, and the associated state programs, state-issued operating permits are submitted to EPA for review and the agency has 45 days to object to their issuance. EPA must object to a permit that fails to meet the Clean Air Act’s requirements. 42 U.S.C. § 7661d. The permit becomes effective if no objection is raised. Within 60 days after the end of EPA’s review period, a third party may petition EPA to object to the permit. 42 U.S.C. § 7661d(b)(2). EPA must grant or deny these third party’s petition within 60 days. 42 U.S.C. § 7661d(b)(2). During the review period for PSNH’s permit, EPA did not object. Sierra Club timely petitioned EPA to object and EPA did not respond to the petition within 60 days as required by the Clean Air Act. Sierra Club filed suit to compel EPA to perform this non-discretionary duty. 42 U.S.C. § 7604(a).
EPA and Sierra Club are currently negotiating settlement terms. PSNH sought to intervene as its facility is the topic of the negotiations. The Court was confident that the settlement discussions would not touch on the terms of the permit, explaining that the lawsuit is limited to “enforc[ing] the statutory timetable for EPA to act on its petition. It does not seek any relief regarding the validity or terms of PSNH’s permit.” Finding that “suits solely about the timing of an agency’s determination do not affect interests in the substance of the determination,” the Court ruled that PSNH could not intervene.
