On July 23, 2014, the United States Court of Appeals for the Eighth Circuit determined that a utility was entitled to intervene in a lawsuit brought by environmental protection groups against the U.S. Environmental Protection Agency (EPA) to require EPA to impose emission-control technology on Northern States Power Company’s (NSP) Sherburne County power plant (Sherco). National Parks Conservation Ass’n v. U.S. E.P.A., — F.3d —-, (8th Cir. July 23, 2014).

Northern States Power Company's  Sherburne County power plant is at the heart of this Clean Air Act lawsuit. (Source: www.xcelenergy.com)

Northern States Power Company’s Sherburne County power plant is at the heart of this Clean Air Act lawsuit. (Source: http://www.xcelenergy.com)

EPA’s Regional Haze Rule, 40 CFR pt. 51, subpart P, establishes visibility protection requirements for many national parks and wildernesses, including Minnesota’s Voyageurs National Park and Michigan’s Isle Royale National Park. In 2009, the Department of the Interior (DOI) certified that visual impairments at the two parks were reasonably attributable to pollution emissions from the Sherco facility. The environmental groups contend that under EPA’s federal implementation plan for regional haze in Minnesota, the DOI determination triggered a mandatory duty for EPA to promptly establish pollution control limits (known as “BART”–best available retrofit technology) for Sherco to address the visibility problem. EPA has not yet established BART for Sherco.

Shortly after the environmental groups filed their complaint in the Minnesota federal district court, NSP moved to intervene under Federal Rule of Civil Procedure 24. In reversing the district court’s denial of NSP’s request, the Eighth Circuit concluded that NSP has Article III standing and also satisfies the requirements of Rule 24. In particular, the court determined that the cost to NSP to install the emissions-control technology sought by environmental groups—estimated at over $280 million—constituted injury-in-fact for Article III standing and a recognized interest for Rule 24(a)(2). Moreover, NSP’s interests would not be sufficiently represented by EPA in the litigation, the court determined (another requirement for intervention under Rule 24(a)(2)).  Although both EPA and NSP disagree with the environmental groups’ allegations in the lawsuit, EPA’s ultimate goal is remedying visibility impairments in national parks and wilderness areas, whereas NSP’s goal is much more focused—protecting its unique ownership and financial interests in the Sherco facility. The Eighth Circuit ordered the district court to allow NSP to intervene in the case.

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