Permissive Intervention in CEQA Actions: No Seat at the Already Crowded Litigation Table

South Coast Air Quality Management District v. City of Los Angeles
(2021) (Case No. B310783)

Earlier this month, the Court of Appeal, Second District decided whether a labor union could intervene in a CEQA suit brought by South Coast Air Quality Management District (Air District) against the City of Los Angeles (City) for non-compliance with CEQA.  The Air District’s petition alleges the City failed to enforce certain mitigation measures included in the 2008 Environmental Impact Report (EIR) prepared for a Port of Los Angeles terminal project, certified a revised EIR in 2020 in error because the revised EIR was deficient in several key areas, and allowed the operation of the terminal under inferior mitigation measures.  The petition seeks the set aside of the terminal approvals and permits, pending compliance with CEQA.

The Air District’s suit named four shipping companies as real parties in interest.  The trial court also allowed the Attorney General and California Air Resources Board to intervene in the case under the mandatory intervention provisions of the Code of Civil Procedure.

The labor union moved to intervene under the permissive intervention statute – Code of Civil Procedure section 387(d)(2).  It argued 3,075 of its members would lose their jobs if the Air District prevails in this CEQA action.  The trial court denied the motion, reasoning the union lacks direct and immediate interest in the case and the prejudice to the parties from the intervention outweighs the benefit of the intervention.  The appeal of the trial court’s ruling on the motion followed.

On appeal, and applying an abuse of discretion standard of review, the Court upheld the ruling denying intervention by the union.  Under section 387(d)(2), courts have broad discretion to grant permissive intervention, but only if all of the following factors are met: (1) proper procedures are followed; (2) the proposed intervenor has a direct and immediate interest in the case; (3) the intervention will not enlarge the issues; and (4) the reasons for intervention outweigh any opposition by the parties to the case.  The Court affirmed based on the last factor – it held the trial court reasonably concluded the Air District’s interest in litigating the case without the union outweighed the union’s reasons for intervention.

Indeed, the case is quite complex because it involves eight petitioners (when including the two intervenor agencies), four agency respondents, and four real parties in interest.  Additionally, while the union’s position and the remedy sought aligned with that of the City’s, the Court observed the union had no interest in the adequacy of the CEQA analysis for the terminal project.  The union itself also admitted “its position on the merits is duplicative” of that taken by the City.  The Court further noted the City and real parties do not lack motivation to defend the approvals and maintain the terminal operations.

The opinion also revealed a related concern of the Court – namely, the ripple effect of allowing intervention by the terminal workers would lead to intervention requests by other affected individuals such as consumers, further complicating the already complicated case.  As such, the Court underscored that the trial court “had no mandatory obligation to open the gate to every potentially affected interest that might mobilize itself to appear.”  Practicality must be a consideration, and “[s]eating at [the] table already was crowded.”

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]