Updated: Jul 9, 2020
Recently, a panel of three judges on the U.S. 4th Circuit Court of Appeals affirmed the decision of a federal district court judge to deny Chesapeake Bay Foundation’s (CBF) request to intervene in the Alt case. The judges agreed with the district court that CBF had failed to timely intervene. Intervene is a process that allows a third party to become a party to on-going litigation because the third party has a stake in the outcome of the case.
For those unfamiliar with the facts in Alt v. EPA, the Environmental Protection Agency (EPA) was inspecting Lois Alt’s West Virginia poultry farm in 2011 and observed rainwater mixed with dander and manure running into ditches on the farm which drained into nearby streams. EPA issued a compliance order to Alt and she did what few people do in her situation – she made a federal case out of it. On June 14, 2012, Alt sued the EPA in federal court, requesting that the court declare the compliance order invalid and the discharges exempt under the agricultural stormwater exemption in the Clean Water Act. Eventually, the district court ruled in Ms. Alt’s favor that the discharge fell under the agricultural stormwater exemption. This decision is currently being appealed to the 4th Circuit.
In order to understand why the district court originally denied CBF’s motion to intervene, we should look at the timeline of groups intervening earlier in this case. In July 2012, American Farm Bureau Federation and the West Virginia Farm Bureau moved to intervene in the case and the district court granted that motion in September of that year. In December 2012, five environmental groups moved to intervene on EPA’s side, and the district court granted that motion in April 2013. On July 2, 2013, CBF moved to intervene. CBF’s motion was denied 28 days later for not being timely filed. CBF appealed that decision to the 4th Circuit Court of Appeals.
On appeal, CBF argued that the district court was wrong and CBF’s motion was timely. The 4th Circuit Court, looking at the facts, found that when CBF moved to intervene the case was already at advanced stages. The district court had already approved other parties to intervene and months of negotiation settlement talks had taken place. Allowing CBF to intervene would cause a delay in the ongoing proceedings and cause additional work for Alt and the farm bureaus. CBF also acknowledged the group did not want to use limited resources at the early stages of the Alt case, took a gamble on entering late, and lost in this strategy. Based on these facts, the 4th Circuit was unable to determine that the district court was wrong in denying CBF’s motion to intervene.
The 4th Circuit’s ruling does not end the appeals process for Alt. EPA had previously filed a notice to appeal the district court’s decision. That appeal was put on hold for the 4th Circuit to decide on CBF’s appeal. Barring any other procedural issues, EPA’s appeal will now move forward. We will keep you posted whenever a decision is reached in EPA’s appeal.