Lawful Intervention

When the outcome of litigation threatens members of a trade association or other interest group with economic injury, the organization itself may intervene as a party in the lawsuit on behalf of its members, according to a ruling by a federal appeals court.

The San Francisco-based Sierra Club is suing several federal agencies and officials under the Clean Air Act, alleging that the defendants ignored proper procedures in approving various transportation plans and projects. The complaint asked for, among other things, an order setting aside the approvals and prohibiting the defendants from funding certain highway projects.

Advocates for Safe and Effective Transportation (ASET), a coalition of trade associations and professional and labor groups serving the transportation infrastructure community, filed a motion to intervene in the lawsuit. “This lawsuit threatens to halt all projects, project funding, project contracts and bids, and implementation of … improvements that are crucial to ASET members' interests,” the motion alleged.

In May 2001, a federal district judge conducted a hearing on the motion. At the outset, counsel for ASET announced an agreement between his client and the Sierra Club for limited participation by ASET, and asked for time to work out the details. Counsel for the government was present at the hearing, but made no comment on ASET's request to intervene. Inexplicably, the judge brushed aside the proposed accord and refused to allow ASET to assert its members' rights.

“If [individual members of ASET] want to vindicate their contracts … tell them to make an application to intervene,” the judge stated. “You're welcome to give voice to your point of view as amicus,” he added.

On appeal, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit overruled the district court decision, and directed the district court to allow ASET to intervene.

The appellate panel cited a number of decisions on an association's right to bring suit or intervene on behalf of its membership. In particular, it quoted from the unanimous opinion of the Supreme Court in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977) where former Chief Justice Warren Burger said: “We have recognized that an association has standing to bring suit on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Moreover, the ruling also noted that the right to file an amicus curiae brief is no substitute for the right to participate as a party in the lawsuit.

This affirmation of long-standing legal doctrine represents good news for organizations such as the Solid Waste Association of North America, Silver Spring, Md., and the Environmental Industry Associations, Washington, D.C.

[Utahns for Better Transportation, et al. v. U.S. Dept. of Transportation, et al., No. 01-4117, 10th Cir., July 5, 2002]

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: