By Nicholas Murray
In July 2009, WildEarth Guardians presented the Tenth Circuit with a very familiar set of facts: a group sought to intervene in an ongoing case on the side of the government. Would-be intervenor, Mountain Coal Company (MCC), owns and operates West Elk coal mine in western Colorado. Within this large underground mine, MCC owns two viable seams of coal, both of which contain a significant amount of methane gas. This coal bed methane (CBM) is “toxic to miners” and “could cause an explosion in the mine.” Because of the substance’s volatility, the permitting process requires that MCC show how it will pump out the CBM. MCC proposed to use a methane-drainage well to vent the gas out of the mine and into the atmosphere. Before MCC could begin venting the gas, the United States Forest Service was required to file an Environmental Impact Statement (EIS) in compliance with the National Environmental Policy Act (NEPA). The Forest Service prepared the EIS as required and approved the construction of the ventilation system. Subsequently, MCC began constructing the system and mining the seam for its resources.
WildEarth Guardians, an environmental organization aimed at protecting the American West from “unconstrained growth and polluting industrial practices,” filed suit against the Forest Service and other governmental entities and agencies. WildEarth alleged that the defendants violated NEPA, and MCC sought to intervene in order to protect its economic interest in the outcome of the case. The United States District Court of Colorado denied MCC’s Motion to Intervene, holding that MCC failed to show that the government was unable to adequately represent the company and “its interests as a practical matter would be impaired or impeded by the litigation.”
On appeal, the Tenth Circuit considered (1) whether MCC’s economic interest could possibly be impaired by the ongoing litigation, and (2) whether the government could adequately represent MCC’s interest. The Court began by reiterating the “liberal” standard of and echoed its holding from San Juan County v. United States, stating that intervention by right is not a mechanical rule, rather, it exists to incorporate parties that would practically effected by the ongoing litigation.
First, the Court found that if MCC could show that impairment of its interest in the outcome of the case is possible, it would satisfy that requirement for intervention. MCC asserted that it began construction of the ventilation system and began mining the seam for coal. The court held that MCC’s “direct economic interest” would be impaired by the suit because “[i]f WildEarth is successful in [the] litigation, operation of the West Elk Mine will be impaired, or even halted.”
Second, the Court delved into the paramount issue of whether the government could adequately represent MCC. Again, the Court recited that the standard for showing inadequate representation is “minimal” and that “[t]he possibility of divergence of interest need not be great in order to satisfy the burden of the applicants.” In opposition to MCC’s motion to intervene, WildEarth argued that the government and MCC have the same goal, a ruling from the court that would allow for MCC to continue its mining operation. In rejecting WildEarth’s argument and allowing MCC’s motion to intervene, the Court propagated a pivotal standard. The Court stated that the intervenor can easily show inadequate representation when the party relied upon is the government. The Court noted that “government policy can shift” and that the government is responsible for “protecting and representing the public interest.” Based on these findings and without noting a particular divergence of interests between the two parties, the Court held that MCC had established the requisite possibility of inadequate representation.
Implicit in the Tenth Circuit’s holding is the standard that intervenors that seek to intervene on the same side as the government walk a road with less obstacles. However, this road is not completely obstacle-free, as the Court found that the intervenor in San Juan was not entitled to intervention by right even though the organization sought to intervene on the same side as the government. Clearly, the would-be intervenor will have to show that a specific divergence of interests in order to prove inadequate representation.