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March 17, 1993

COUNTY OF ORANGE, et. al., Defendants.


The opinion of the court was delivered by: GERARD L. GOETTEL



 A new chapter has opened in the case involving the Orange County's municipal landfill. Since much has transpired in this action, we make no attempt to explain its history. For a detailed review of its background, we refer to our last opinion of January 20, 1993. See Orange Environment, Inc. v. County of Orange, No. 91 Civ. 8688 (S.D.N.Y. January 20, 1993). Instead, we shall outline the most recent and relevant events that led to the present motion.

 Plaintiffs Orange Environment, Inc., a not-for-profit New York corporation, and Arthur and Sandra Soons commenced this action in December 1991 against the County, its Department of Public Works, and several County officials. Among other things, they claim that certain unpermitted discharges of pollutants on federally protected wetlands had occurred violating the Clean Water Act, 33 U.S.C. § 1251 et seq. (the "CWA"). Plaintiffs also claim violations of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA") and various state laws.

 The County Attorney, in consultation with the defendant County Executive, Mary McPhillips, retained the law firm of Nixon, Hargrave, Devans & Doyle to represent defendants in the federal action. The County Legislature was informed of the suit and tacitly agreed to Nixon Hargrave's representation. Indeed, the legislature periodically consulted with the law firm over strategy as the litigation progressed.

 After the County suspended its construction activities at the landfill and the Environmental Protection Agency ("EPA") commenced an investigation, the County and the EPA began negotiating a Compliance Order. In July 1992, the EPA issued its Compliance Order. The Order required the County to restore lost wetlands offsite and, subject to its satisfactory completion, allowed the County to recommence a phased operational use of the landfill expansion.

 Following the issuance of the Compliance Order, plaintiff filed a motion for a preliminary injunction in this court. The Hudson Riverkeeper Fund, Inc. (the "Riverkeeper"), a second citizens environmental group, simultaneously moved to intervene. The permissive intervention was granted and decision on the preliminary injunction motion was reserved pending an evidentiary hearing at which time the preliminary injunction motion would be consolidated with a decision on a permanent injunction.

 In August 1992, the New York Department of Environmental Conservation ("DEC") issued a permit to operate three of the seven subcells of Phase I of the landfill expansion. The DEC attached a large number of conditions to its permit that the County must meet before operations can commence including repair of Phase I's leaking liner system and completion of Phase II's construction.

 In January 1993, pursuant to an agreement between the parties and the court, plaintiffs and defendants each submitted motions for summary judgment. Plaintiffs sought a declaratory judgment that the defendant County's unpermitted use of the landfill represented a continuing violation of the CWA since no permit had been secured from the Army Corps of Engineers before recommencing landfill operations. The parties agreed that the permit issue might be decisive.

 Shortly after the court's decision was received by the parties, the County Executive announced that the County would no longer pursue opening the landfill and stated her intention not to appeal the court's decision. The County Executive based her decision on the limited life of the landfill compared to the time and costs of continuing litigation to pursue its opening. The land underneath the landfill expansion site lies within the Southern Wallkill Valley Aquifer which has been designated a "principle aquifer" by New York State. Under state regulations, the landfill expansion site must be closed by December 31, 1995, the latest date a landfill sitting atop an aquifer can be operated.

 On February 2, 1993, the County Executive delivered correspondence to the Legislature's Chairman, Edward Diana, formally communicating her intention not to appeal the decision and instead attempt to settle the case. Settlement discussions between the County and plaintiffs ensued. Later that same day, at a special session, the Legislature adopted Resolution No. 12 authorizing an appeal of this court's January 20th decision and the retention of Nixon, Hargrave to prosecute the appeal. The Resolution stated that in the event Nixon, Hargrave declined to represent the legislature, its Chairman was empowered to retain legal counsel for the appeal. *fn1" The TIMES HERALD RECORD, a local newspaper in Orange County, reported the following day that several lawmakers said the appeal was needed to strengthen the County's position in any settlement negotiations and as a means of trying to avoid paying legal fees to the plaintiff organizations.

 On February 4, 1993, Nixon, Hargrave informed the Legislature that it had been instructed by the County Attorney and County Executive not to proceed with an appeal and its contract of representation precluded it from representing the Legislature under the circumstances.

 Before the court today is a motion by the County Legislature to intervene as a necessary party pursuant to Fed.R.Civ.P. 24(a)(2). Additionally, the Legislature requests pursuant to Rule 54(b), Fed.R.Civ.P., certification that the court's January 20, 1993 decision is a final judgment for purposes of appeal. This motion is opposed by all the parties presently part of this suit.


 It seems perfectly obvious that the motion presently before the court does not stem from any rarified legal dispute but rather is the product of divisive partisan politics that has smoldered in Orange County for some time, and occasionally erupted into pitched battle. The Republican-controlled County Legislature, irked at the Democratic County Executive's refusal to appeal this court's January 20, 1993 decision, seeks to intervene as a matter of right for the purposes of pursuing the appeal.

 A. The Legislature's Standing

 In general, only a party of record in an action, including those who have been permitted to intervene, may appeal. Farmland Dairies v. Com'r of New York Dep't of Agr., 847 F.2d 1038, 1043 (2d Cir. 1988). As the plaintiff-intervenor Riverkeeper points out, the initial issue is whether the Legislature has standing to intervene as a necessary party to this action. This issue turns on whether the Legislature has rights or interests as a representative of the County which are being usurped, or at least not protected, by the present County defendants. To make such an inquiry, we must first understand the nature of the Legislature's interest in this litigation. We shall focus on the responsibility over landfills and the prosecution of civil actions is apportioned between the branches of the County government.

 To establish standing, the County Legislature must demonstrate, inter alia, an actual or threatened injury to interests that are arguably within the zone of interests to be protected or regulated by Charter or applicable state statute, and which is capable of judicial redress. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Ass'n of Data Processing Serv. Organizations Inc. v. Camp, 397 U.S. 150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970).

 In the present case, the Legislature claims that its ability to participate in the litigation process, as the body of County government with ultimate responsibility for the landfill, will be destroyed unless it is permitted to intervene. In essence, the Legislature argues that, as the real party at interest, the decision to appeal is a policy determination that the Legislature has made by resolution, but whose implementation is being frustrated by the County Executive. In our view, the Legislature's position boils down to an argument that the County Executive's refusal to appeal in effect nullifies the resolution passed by the Legislature at the February 2nd special session pursuant to its ultimate policy-making powers for the landfill.

 Courts have held that executive actions which nullify a legislator's (or legislature's) vote, or impact on its effectiveness, may provide standing to raise claims of injury to the legislative body's statutory interests or rights. See, e.g., Coleman v. Miller, 307 U.S. 433, 83 L. Ed. 1385, 59 S. Ct. 972 (1939) (state legislators have a "plain, direct, and adequate interest in maintaining the effectiveness of their votes."); Dennis v. Luis, 741 F.2d 628, 631 (3rd Cir. 1984) (the governor's appointment of an "acting" official may usurp state legislators' right of advise and consent); Kennedy v. Sampson, ...

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