UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________________________________
)
COALITION FOR RESPONSIBLE REGULATION, )
INC., INDUSTRIAL MINERALS ASSOCIATION— )
NORTH AMERICA, NATIONAL CATTLEMEN’S )
BEEF ASSOCIATION, GREAT NORTHERN )
PROJECT DEVELOPMENT, L.P., ROSEBUD )
MINING COMPANY, and ALPHA NATURAL )
RESOURCES, INC. )
)
Petitioners, )
)
v. ) No. 10-1092
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY )
)
Respondent, )
______________________________________________ )
________________________________________
)
SOUTHEASTERN LEGAL FOUNDATION INC., )
U.S. REPRESENTATIVE JOHN LINDER (GA-7TH), )
U.S. REPRESENTATIVE DANA ROHRABACHER )
(CA-46TH), U.S. REPRESENTATIVE JOHN )
SHIMKUS (IL-19TH), U.S. REPRESENTATIVE )
PHIL GRINGREY (GA-11TH), U.S. )
REPRESENTATIVE LYNN WESTMORELAND )
(GA-3RD), U.S. REPRESENTATIVE TOM PRICE )
(GA-6TH), U.S. REPRESENTATIVE PAUL BROUN )
(GA-10TH), U.S. REPRESENTATIVE STEVE KING )
(IA-5TH), U.S. REPRESENTATIVE NATHAN DEAL )
(GA-9TH), U.S. REPRESENTATIVE JACK )
KINGSTON (GA-1ST), U.S. REPRESENTATIVE )
MICHELLE BACHMAN (MN-6TH), U.S. )
REPRESENTATIVE KEVIN BRADY (TX-8TH), U.S. )
REPRESENTATIVE JOHN SHADEGG (AZ-3RD), )
U.S. REPRESENTATIVE DAN BURTON (IN-5TH), )
THE LANGDALE COMPANY, LANGDALE FOREST )
PRODUCTS COMPANY, LANGDALE TIMBER )
COMPANY, GEORGIA MOTOR TRUCKING )
ASSOCIATION, INC., COLLINS INDUSTRIES, INC., )
COLLINS TRUCKING COMPANY, INC., COLLINS )
READY-MIX CONCRETE, INC., KENNESAW )
TRANSPORTATION, INC., J&M TANK LINES, INC., )
SOUTHEAST TRAILER MART, INC., AND )
GEORGIA AGRIBUSINESS COUNCIL, INC., )
)
Petitioners, )
)
v. ) No. 10-1094
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY and NATIONAL )
HIGHWAT TRAFFIC SAFETY ADMINISTRATION )
(NHTSA), )
)
Respondents, )
______________________________________________ )

MOTION OF ALLIANCE OF AUTOMOBILE MANUFACTURERS

FOR LEAVE TO INTERVENE

Pursuant to Federal Rule of Appellate Procedure 15(d) and Circuit Rule

15(b), the Alliance of Automobile Manufacturers (the “Alliance”) hereby moves

for leave to intervene as a party respondent in the above-captioned proceedings and

in any future petitions for review challenging the same agency action. In support

of its motion, the Alliance states as follows:

1. The Alliance is a trade association of 11 car and light truck

manufacturers, including BMW Group, Chrysler Group LLC, Ford Motor

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Company, General Motors Company, Jaguar Land Rover, Mazda North America,

Mercedes-Benz USA, Mitsubishi Motors, Porsche Cars North America, Toyota

Motors North America, Inc., and Volkswagen Group of America, and represents its

members’ interests in this litigation.

2. This Court and other Circuits regularly permit the Alliance to

intervene in support of agency rulemakings that affect its members’ interests. See,

e.g., Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279

(D.C. Cir. 2007) (intervening in support of respondent and its final rule requiring a

warning system in new motor vehicles to indicate to the operator when a tire is

significantly under inflated); Public Citizen, Inc. v. Nat’l Highway Traffic Safety

Admin., 374 F.3d 1251 (D.C. Cir. 2004) (intervening in support of respondent and

its final rule setting speed for unbelted rigid barrier vehicle crash testing at twenty-

five miles per hour); Public Citizen, Inc. v. Mineta, 343 F.3d 1159 (9th Cir. 2003)

(intervening in support of respondent and National Highway Traffic Safety

Administration (“NHTSA”) rule amending safety standards for air bags); Public

Citizen, Inc. v. Mineta, 340 F.3d 39 (2d Cir. 2003) (intervening in support of

respondent and NHTSA tire-pressure rule); Ethyl Corp. v. E.P.A., 306 F.3d 1144

(D.C. Cir. 2002) (intervening in support of respondent and its rule establishing

framework for automobile makers to develop their own durability tests for

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determining whether new vehicles emissions would comply with emissions

standards set forth in the Clean Air Act).

Background

3. In May 2009, the President announced a plan to establish a National

Program that reduces carbon emissions and increases fuel economy. The National

Program requires two federal agencies to issue harmonized regulations: (1) fuel

economy standards, administered by the National Highway Traffic Safety

Administration (“NHTSA”); and (2) greenhouse gas emissions standards for motor

vehicles, administered by the Environmental Protection Agency (“EPA”).1

4. The May 2009 announcement followed in the wake of several federal

litigation challenges that had been filed by the Alliance, another automobile

industry association (the Association of International Automobile Manufacturers),

and several individual automobile manufacturers and dealers against state-specific

greenhouse gas standards for motor vehicles. These challenges argued that

California’s so-called “AB 1493 greenhouse gas” standards, and other state

1
See generally President Obama Announces National Fuel Efficiency
Policy, The White House, May 19, 2009, available at
http://www.whitehouse.gov/the_press_office/President-Obama-Announces-
National-Fuel-Efficiency-Policy (last accessed June 7, 2010); Remarks by the
President on National Fuel Efficiency Standards, The White House, May 19, 2009,
available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-
President-on-national-fuel-efficiency-standards (last accessed June 7, 2010).

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standards modeled after AB 1493, were preempted by the federal Energy Policy

and Conservation Act. See, e.g., Green Mountain Chrysler-Plymouth-Dodge-Jeep

v. Crombie, No. 2:2005-cv-00302 (D. Vt. filed Nov. 18, 2005), appeal dismissed

No. 07-4342-cv(L) (2d Cir. Apr. 20, 2010).

5. Following the announcement of the plan for a National Program, the

government, automakers and environmental groups took a series of actions that

culminated in the dismissal of all pending litigation over California’s AB 1493

standards:

a. EPA and NHTSA issued a Notice of Intent to conduct a joint

rulemaking to develop the National Program. See Notice of

Upcoming Joint Rulemaking To Establish Vehicle GHG

Emissions and CAFE Standards, 74 Fed. Reg. 24,007 (May 22,

2009).

b. The Alliance and other parties stayed all litigation over

California’s AB 1493 standards pending completion of the

National Program rule.

c. EPA issued a final decision granting California a waiver of

preemption under section 209 of the Clean Air Act for its

greenhouse gas emissions standards for motor vehicles for

model years 2009 through 2016. See Notice of Decision

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 Granting a Waiver of Clean Air Act Preemption for California's

2009 and Subsequent Model Year Greenhouse Gas Emission

Standards for New Motor Vehicles, 74 Fed. Reg. 32,744 (July

8, 2009).

d. California revised its AB 1493 regulations, effective April 1,

2010, so that, among other things, (i) manufacturer compliance

for model year 2009-2011 is based on vehicles delivered for

sale in all States that have adopted AB 1493, not just those in

California; and (ii) manufacturer compliance with EPA’s

greenhouse gas emissions requirements for model years 2012-

2016 would be sufficient for compliance with California’s

standards.

6. On May 7, 2010, EPA and NHTSA jointly issued a Final Rule

establishing nationwide light-duty vehicle greenhouse gas and corporate average

fuel economy standards for model years 2012 through 2016. See Light-Duty

Vehicle Greenhouse Gas Emissions Standards and Corporate Average Fuel

Economy Standards; Final Rule, 75 Fed. Reg. 25,324 (May 7, 2010) (the “Final

Rule”). The Final Rule was the culmination of joint rulemaking proceedings that

reflect a coordinated and harmonized approach to implementing the Clean Air Act

and the Energy Policy and Conservation Act. The Alliance participated in these

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proceedings by, among other things, submitting extensive comments on the

proposed rule. See, e.g., id. at 25,368-69, 25,415.

7. On May 7, 2010, Petitioners Coalition for Responsible Regulation,

Inc., Industrial Minerals Association—North America, National Cattlemen’s Beef

Association, Great Northern Project Development, L.P., Rosebud Mining

Company, and Alpha Natural Resources, Inc. filed a petition for review of the

Final Rule pursuant to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. §

7607(b)(1), naming EPA as the sole respondent. That petition has been docketed

as No. 10-1092.

8. On May 11, 2010, Petitioners Southeastern Legal Foundation Inc.,

The Langdale Company, Langdale Forest Products Company, Langdale Timber

Company, Georgia Motor Trucking Association, Inc., Collins Industries, Inc.,

Collins Trucking Company, Inc., Collins Ready-Mix Concrete, Inc., Kennesaw

Transportation, Inc., J&M Tank Lines, Inc., Southeast Trailer Mart, Inc., Georgia

Agribusiness Council, Inc., and 14 Members of Congress, filed a petition for

review of the Final Rule, naming EPA and NHTSA as the respondents. That

petition has been docketed as No. 10-1094.

Grounds For Intervention

9. Rule 15(d) states that a motion to intervene “must be filed within 30

days after the petition for review is filed and must contain a concise statement of

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the interest of the moving party and the grounds for intervention.” FED. R. APP.

15(d). To satisfy this rule, a prospective intervenor must “simply … file a motion

setting forth its interest and the grounds on which intervention is sought.” Synovus

Fin. Corp. v. Bd. of Governors of Fed. Reserve Sys., 952 F.2d 426, 433 (D.C. Cir.

1991).

10. Since Rule 15(d) does not provide any standards for intervention,

“appellate courts have turned to the rules governing intervention in the district

courts under Fed. R. Civ. P. 24.” Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 517-18

(7th Cir. 2004). Under that rule, this Court has held that “qualification for

intervention as of right depends on the following four factors: (1) the timeliness of

the motion; (2) whether the applicant ‘claims an interest relating to the property or

transaction which is the subject of the action’; (3) whether ‘the applicant is so

situated that the disposition of the action may as a practical matter impair or

impede the applicant’s ability to protect that interest’; and (4) whether ‘the

applicant’s interest is adequately represented by existing parties.’” Fund For

Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting FED. R. CIV.

P. 24(a)(2)); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-34

(D.C. Cir. 2003). The Alliance easily satisfies this test.

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 The Motion Is Timely

11. This motion is timely because it has been filed within “30 days after

the petition for review [was] filed.” FED. R. APP. P. 15(d); see also Alabama

Power Co. v. I.C.C., 852 F.2d 1361, 1367 (D.C. Cir. 1988).

The Alliance And Its Members Have Significant Interests In A Uniform

National Standard For Greenhouse Gas Emissions & Fuel Economy
Standards

12. The Alliance and its members have a direct, immediate, and

substantial interest in this case that would be harmed if the petitions for review are

granted. In the Final Rule, EPA and NHTSA have established a National Program

that is consistent with both the Energy Policy and Conservation Act and the Clean

Air Act, and that will reduce carbon emissions and increase fuel economy. Such a

National Program is a priority for the Alliance and its members because a national

fuel economy program allows manufacturers to achieve compliance by averaging

their sales nationwide, so customers in all 50 States can continue to buy the types

of vehicles they need for family, business and leisure. In other words,

manufacturers may sell vehicles in State A that exceed the fuel-economy

requirement, and vehicles in State B that are below the fuel-economy

requirement—so long as the requirement is met based on the average of that

manufacturer’s sales nationwide.

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 13. A National Program also avoids conflicting standards from different

regulatory agencies, and it gives automakers much-needed certainty for long-term

product planning. In particular, the National Program provides automakers

sufficient lead-time to incorporate technology as part of existing vehicle design

schedules, so manufacturers will not have to incur added costs from redesigning all

of their models at one time.

Disposition Of The Petition May Impair The Alliance’s Members’

Interests

14. The operations of the Alliance’s members are directly implicated by

the Final Rule and would be directly affected should this Court grant the petitions

for review. These Petitions jeopardize the development of an integrated national

approach to increasing automobile fuel economy and thus reducing carbon

emissions.

15. The Final Rule provides manufacturers with a roadmap for meeting

significant mileage-per-gallon increases over a series of model years, as well as the

certainty and lead time necessary to add new technology in a cost-effective

manner. The Petitions, if granted, would deprive manufacturers of this certainty,

thereby impeding their efforts to introduce new technologies with long-term

research and development timeframes.

16. The Petitions, moreover, raise the specter of reverting to the previous

patchwork of regulation under which NHTSA promulgated new fuel economy

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standards required by Congress under the Energy Policy and Conservation Act (as

amended by the Energy Independence and Security Act of 2007), EPA prepared

greenhouse gas standards under the Clean Air Act, and California and 13 other

States planned their own state-specific greenhouse gas standards. Such a

Balkanized scheme would potentially result in conflicting standards from different

regulations that would significantly impair the interests of the Alliance’s members.

In particular, without a National Program, automobile manufacturers might not be

permitted to offset sales in one State of vehicles that fall short of the applicable

fuel-economy standard against sales in another State of more fuel-efficient

vehicles. A manufacturer faced with such a shortfall in the former State would

have no choice but to pay penalties for violating the standards or curtail the sales of

its less fuel-efficient vehicles. The Alliance seeks to intervene in this matter to

help prevent the Petitions from causing the reinstatement of such a costly and

inefficient scheme.

The Federal Agency Respondents May Be Unable To Represent The

Alliance’s Unique Interests Adequately

17. A prospective intervenor’s burden of showing inadequate

representation “is not onerous,” as it “need only show that representation of [its]

interest ‘may be’ inadequate, not that representation will in fact be inadequate.”

Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (citing

Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).
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 18. The Alliance has a unique interest in this matter separate and apart

from the regulatory interests of EPA and NHTSA, the federal agencies named as

Respondents. EPA’s and NHTSA’s overarching interests are the proper

administration and implementation of environmental and motor vehicle regulatory

schemes, including the Clean Air Act and the Energy Policy and Conservation Act.

These regulatory interests extend beyond automobile manufacturers to other

industries (members of which are among the Petitioners). The Alliance’s

overarching interest, on the other hand, is protecting its members’ business

interests and maintaining a workable National Program that will reduce carbon

emissions and increase fuel economy in a way that does not disrupt the nationwide

market for motor vehicles. Thus, the Alliance and the federal Respondents may

not have identical interests and may make different arguments before this Court.

For example, Respondents might be unwilling to support a disposition of the

Petitions that sustains the National Program but restricts Respondents’ ability to

regulate other industries, whereas the Alliance might potentially support such a

disposition.

19. No other party to this Petition represents the Alliance’s or its

members’ interests, and if the Alliance is denied party status, it will have no other

means of protecting these important legal interests. See Dimond, 792 F.2d at 192-

93 (“A government entity … is charged by law with representing the public

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interest of its citizens. … [It] would be shirking its duty were it to advance th[e]

narrower interest [of a business concern] at the expense of its representation of the

general public interest.”).

20. The Alliance will endeavor to coordinate with the federal agency

Respondents, as well as any other intervenors, to avoid duplicative briefing and to

ensure that its participation as intervenor is of assistance to the Court.

***

Wherefore, the Alliance respectfully requests that it be granted leave to

intervene as a party respondent in the captioned proceedings and any future

petition for review challenging the Final Rule.

June 7, 2010 Respectfully submitted,

s/ Kathleen M. Sullivan_________________
Kathleen M. Sullivan
Sanford I. Weisburst
William B. Adams
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Flr.
New York, New York 10010
(212) 849-7000

Attorneys for Proposed Intervenor-

Respondent Alliance of Automobile
Manufacturers

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 CERTIFICATE OF SERVICE

I, Kathleen M. Sullivan, a member of the Bar of this Court, hereby certify

that on June 7, 2010, I electronically filed the foregoing “Motion Of Alliance of

Automobile Manufacturers For Leave To Intervene” with the Clerk of the Court

for the United States Court of Appeals for the D.C. Circuit by using the appellate

CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate ECF system.

I further certify that two of the following participants have indicated that

they prefer to be served by U.S. Mail. I have mailed the foregoing “Motion Of

Alliance of Automobile Manufacturers For Leave To Intervene” by first-class mail,

postage prepaid, to the following non-CM/ECF participant:

James Arnold Holtkamp

Holland & Hart, LLP
60 East South Temple Street
Suite 2000
Salt Lake City, UT 84111

Patrick Reed Day

Holland & Hart, LLP
2515 Warren Avenue
Suite 450
Cheyenne, WY 82001-3162

s/ Kathleen M. Sullivan____

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