UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF WASHINGTON BUSINESS, et al.,

Plaintiffs,

v. No. 23-cv-3605 (DLF)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Defendants.

MEMORANDUM OPINION

In 2022, the Environmental Protection Agency promulgated a rule imposing federal

water-quality standards on the State of Washington. A cohort of Washington business

associations sued to challenge the Agency’s action under the Administrative Procedure Act and

the Clean Water Act. After the plaintiffs filed suit, the Agency moved to transfer this case to the

U.S. District Court for the Western District of Washington. In addition, the State of Washington

and a handful of federally recognized tribes moved to intervene as defendants. For the reasons

that follow, the Court will deny the Agency’s motion to transfer and grant the various motions to

intervene.

I. BACKGROUND

A. Factual Background

The Clean Water Act “anticipates a partnership between the States and the Federal

Government, animated by a shared objective: ‘to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.’” Arkansas v. Oklahoma,

(1992) (quoting

(a)). To further this “program of cooperative federalism,” New York v. United States,

(1992) (cleaned up), the Act requires states “from time

to time []but at least once each three year period” to develop “applicable water quality

standards,” including “criteria” designed to protect designated “uses” for a state’s water,

(c)(1)–(c)(2). The Environmental Protection Agency publishes “criteria for water

quality accurately reflecting the latest scientific knowledge” to aid states in developing these

standards.

§ 1314(a)(1). Among such criteria are so-called “human health criteria,”

governing the levels of “chemicals or conditions in a water body that are not expected to cause

adverse effects to human health.” Compl. ¶ 30, Dkt. 1; see

(a)(1).

After a state has revised or adopted a new water-quality standard, the standard “shall be

made available to the Administrator” of the Environmental Protection Agency for approval.

(c)(1). If the Administrator “determines” that a state’s water-quality standard

“meets the requirements of” the Act, the state’s “standard shall thereafter be the water quality

standard for the applicable waters of that State.” See

§ 1313(c)(3). If the Administrator

“determines” that a state’s water-quality standard “is not consistent with the applicable

requirements of” the Act, however, the Administrator shall “notify the State and specify the

changes to meet such requirements.” Id. If the state does not adopt those changes within an

allotted period of time, “the Administrator shall promulgate such [water-quality] standard[s]” for

the state, imposing a federal standard. Id.

Relevant here are the State of Washington’s water-quality standards for polychlorinated

biphenyls (“PCBs”), which are “a group of man-made organic chemicals consisting of carbon,

hydrogen and chlorine atoms.” Learn About Polychlorinated Biphenyls, Env’t Prot. Agency,

https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls. [https://perma.cc/6ER4-4JHP].

2 Although Congress outlawed PCBs, they “may still be present in products and materials . . . that

were produced before the 1979 PCB ban.” Compl. ¶ 35.

In 2016, Washington proposed approximately 188 new human-health criteria. See id.

¶ 49. The Agency then approved 45 of Washington’s proposed criteria but disapproved 143; one

of the criteria the Agency rejected was Washington’s PCB criteria, arguing that it was

“insufficiently protective.” Id. ¶ 50; see Revision of Certain Federal Water Quality Criteria

Applicable to Washington,

, 85419 (Nov. 28, 2016). In relevant part, the

Agency reasoned that “more highly exposed subgroups,” such as “subsistence fishers,” required

more thorough protection from PCBs. Compl. ¶ 51 (cleaned up). The Agency was particularly

concerned with “cover[ed] areas where tribes have treaty-reserved rights to practice subsistence

fishing.” 81 Fed. Reg. at 85424–25. The Agency in turn promulgated federal human health

criteria to supplant Washington’s disapproved criteria. See 81 Fed. Reg. at 85419.

But in 2019, the Agency reversed course, “determining that its partial disapproval had

improperly infringed on Washington’s authority under the [Clean Water Act] to make its own

risk-management decisions based in sound science.” Compl. ¶ 56. More specifically, the

Agency determined that Washington’s proposed PCB standard was “based on sound science”

and “protective of Washington’s designated uses.” Withdrawal of Certain Federal Water Quality

Criteria Applicable to Washington,

, 28496 (May 13, 2020). The Agency

also reasoned that it was “improper and unnecessary” to “harmonize” tribal-treaty rights with the

Clean Water Act. See Letter from Chris Hladick, Reg’l Adm’r, United States Env’t Prot.

Agency Region 10 to Maia Bellon, Dir., Wash. Dep’t of Ecology at 22–24 (May 10, 2019),

https://www.epa.gov/sites/default/files/2019-05/documents/wawqsletter_td_dated_may_2019

.pdf [https://perma.cc/HBL4-65BM]. On May 13, 2020, the Agency promulgated a final rule

3 approving Washington’s proposed human-health criteria and withdrawing the corresponding

2016 federal standard. See 85 Fed. Reg. at 28494.

In 2022, however, the Agency doubled back and proposed the reimposition of federal

water-quality standards “for Washington waters” resembling those in the 2016 rule. See

Restoring Protective Human Health Criteria in Washington,

, 19051 (Nov.

18, 2022). The Agency reasoned that Washington’s human-health criteria had to consider “tribal

members exercising their legal right to harvest and consume fish and shellfish at subsistence

levels” as a “target general population” and reiterated the “same rationale” as in 2016.

at

19054–55.

B. Procedural Background

A group of business associations—the Association of Washington Business, Northwest

Pulp & Paper Association, American Forest & Paper Association, Greater Spokane, Inc., Food

Northwest—brought this action against the Environmental Protection Agency and Administrator

Michael Regan (together, the “Agency”) to challenge the 2022 rule under the Administrative

Procedure Act and Clean Water Act. See Compl. ¶¶ 17–21, 66–135. The plaintiffs argue,

among other things, that the Agency reversed policy without justification and erroneously relied

on tribal treaty rights. See, e.g.,

¶¶ 76–91. As relief, they seek vacatur of the 2022 rule. See

.

The Agency moved to transfer under

(a) to the U.S. District Court for

the Western District of Washington. See Mot. to Transfer at 1, Dkt. 19. After the Agency filed

its motion, the State of Washington, Quinault Indian Nation, Puyallup Tribe of Indians, Lower

Elwha Klallam Tribe, Makah Indian Tribe, and Port Gamble S’Klallam Tribe all moved to

4 intervene as defendants. See State of Wash.’s Mot. to Intervene, Dkt. 20; Quinault Indian Nation

Mot. to Intervene, Dkt. 30; Tribes’ Mot. to Intervene, Dkt. 31.

II. LEGAL STANDARDS

If a case is brought in a proper venue, a party may nevertheless move to transfer to

another district under

(a). This statute provides that “[f]or the convenience of

parties and witnesses, in the interest of justice, a district court may transfer any civil action to

any other district or division where it might have been brought or to any district or division to

which all parties have consented.”

(a). From this, two requirements emerge.

The Court must first ask whether the case “might have been brought” in the transferee court—a

question turning on the general venue statute,

. Van Dusen v. Barrack,

(1964). If that requirement is met, the Court then has “discretion . . . to adjudicate

motions for transfer according to an ‘individualized, case-by-case consideration of convenience

and fairness.’” Stewart Org., Inc. v. Ricoh Corp.,

(1988) (quoting Van Dusen,

).

As part of this discretionary second step, judges in this district consider “a number of

private- and public-interest factors.” Stewart v. Azar,

(D.D.C. 2018).

The private interest factors include (1) “the plaintiff’s preferred forum,” (2) “the defendant’s

preferred forum,” (3) “where the claims arose,” and (4) “the convenience to the parties,

witnesses, and to the evidence.” McAfee, LLC v. U.S. Citizenship & Immigr. Servs., No. 19-cv-

2981,

, at *1 (D.D.C. Nov. 15, 2019) (quoting Gyau v. Sessions, No. 18-cv-

0407,

, at *1 (D.D.C. Oct. 15, 2018)). And the public interest factors are (1)

“the transferee court’s familiarity with the governing laws,” (2) “each court’s relative

congestion,” and (3) “the local interest in resolving the controversy.”

(quoting Gyau, 2018

, at *1). In adjudicating a transfer motion, the Court must protect against “the

danger that a plaintiff might manufacture venue in the District of Columbia . . . [b]y naming high

government officials as defendants.” Cameron v. Thronburgh,

(D.C. Cir.

1993). But the party seeking transfer carries the burden to show that transfer is both proper and

in the private and public interest. See Sierra Club v. Flowers,

(D.D.C.

2003).

Further, Rule 24 of the Federal Rules of Civil Procedure “outlines two different avenues

by which a court can allow an outsider to intervene—intervention of right, and permissive

intervention.” EEOC v. Nat’l Children’s Ctr., Inc.,

(D.C. Cir. 1998). Rule

24(a) provides for intervention of right when a third party either “is given an unconditional right

to intervene by a federal statute” or “claims an interest . . . that is the subject of the action, and is

so situated that disposing of the action may as a practical matter impair or impede the movant’s

ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.

Civ. P. 24(a); see Fund for Animals, Inc. v. Norton,

, 731–32 (D.C. Cir. 2003)

(describing the four-factor test to be applied).

Rule 24(b) also provides for permissive intervention by a third party who either “is given

a conditional right to intervene by a federal statute” or “has a claim or defense that shares with

the main action a common question of law.” Fed. R. Civ. P. 24(b). The D.C. Circuit has

“eschewed strict readings of the phrase ‘claim or defense,’ allowing intervention even in

situations where the existence of any nominate claim or defense is difficult to find.” Nat’l

Children’s Ctr., Inc.,

(cleaned up). The Court must also “consider whether the

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed.

R. Civ. P. 24(b)(3). The Court retains “considerable latitude to grant or deny intervention based

6 on the particular circumstances of the case” under Rule 24(b). Ctr. for Biological Diversity v.

EPA,

(D.D.C. 2011) (cleaned up). Independently, it is also “circuit law that

intervenors must demonstrate Article III standing,” whether the intervenor is a would-be plaintiff

or defendant. 1 Deutsche Bank Nat’l Tr. Co. v. FDIC,

(D.C. Cir. 2013); see

also

(Silberman, J., concurring) (“[D]istrict courts have discretion to grant permissive

intervention under Rule 24(b), which requires only that a party have a claim or defense that

shares with the main action a common question of law or fact. Opening participation to parties

without standing would be quite troublesome.” (cleaned up)).

III. ANALYSIS

A. Motion to Transfer

The Court turns first to the Agency’s motion to transfer this action to the United States

District Court for the Western District of Washington.

1. Appropriateness of New Venue

As a threshold matter, the Court concludes that this action “might have been brought” in

the U.S. District Court for the Western District of Washington.

(a). Per

(e)(1)(C), a civil action against “an officer or employee of the United States or any

agency thereof acting in his official capacity” may “be brought in any judicial district in which”

1 The Tribes argue that D.C. Circuit precedent requiring standing for intervenors is “plainly inconsistent with[] the Supreme Court’s recent opinions.” See Tribes’ Mot. to Intervene at 4–5 (quoting Env’t Integrity Project v. Wheeler, No. 20-cv-1734,

, at *2 (D.D.C. Jan. 27, 2021) (Jackson, J.)); see also Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

, 2379 n.6 (2020) (holding that an appellate court “erred by inquiring into [an intervenor’s] independent Article III standing” when the intervenor sought the same relief as the defendant-appellant). But given that the intervenor-defendants all have Article III standing, the Court does not need to decide here whether the Supreme Court’s decisions clearly “eviscerate[d] the circuit precedent[] such that the two decisions are incompatible with each other.” McCarthy v. Pelosi,

, 35 (D.D.C. 2020) (cleaned up).

7 “the plaintiff resides if no real property is involved in the action.” It is uncontested that at least

two of the plaintiffs reside within the Western District of Washington. See Compl. ¶¶ 17, 18;

Reply in Supp. of Mot. to Transfer at 2, Dkt. 25. As such, this case could have been brought in

the Western District of Washington, so § 1404(a)’s threshold requirement is satisfied.

With this threshold cleared, the Court turns its attention to whether the “particular

circumstances” of this case “render [this] forum inappropriate.” Starnes v. McGuire,

(D.C. Cir. 1974).

2. Private Interest Factors

The Court is concerned with three categories of private-interest factors: (i) the parties’

choice of forum, (ii) the claims’ connection to the forum, and (iii) convenience to the parties and

witnesses and the accessibility of the evidence. On balance, these factors counsel against

transfer.

i. Parties’ Choice of Forum

The Court first considers how much deference to afford each side’s forum preference.

Starting with the plaintiffs, “[a] plaintiff’s choice of forum is generally afforded substantial

deference, but that deference is not unyielding.” Gulf Restoration Network v. Jewell,

(D.D.C. 2015) (cleaned up). But see Greater Yellowstone Coal. v. Bosworth,

(D.D.C. 2001) (“[T]his deference is mitigated if the plaintiffs’ choice of

forum has no meaningful ties to the controversy and no particular interest in the parties or subject

matter.” (cleaned up)). “When a plaintiff brings suit in its forum of residence, it is entitled to a

strong presumption in favor of the chosen forum.” Oceana, Inc. v. Pritzker,

(D.D.C. 2013). This presumption applies here because one of the five plaintiffs (American

Forest & Paper Association) has its headquarters in Washington, D.C. See Compl. ¶ 19; see also

8 Sierra Club v. Van Antwerp,

(D.D.C. 2007) (applying this presumption

when a plaintiff “has its headquarters in the District of Columbia[] and is thus clearly a resident

of this District”). The mere fact that other plaintiffs are not from the District of Columbia does

not, standing alone, vitiate the presumption. See, e.g., Greater Yellowstone Coal.,

(denying transfer when “two of the five plaintiffs” were located in the District of

Columbia).

The Agency contends that the Court should afford no such deference to the plaintiffs’

choice of forum. In their view, the fact that American Forest & Paper Association’s

headquarters is in the District of Columbia is “tenuous” and “outweighed” by the location of

other plaintiffs in the Pacific Northwest and their “alleged harm stemming from . . . Washington

members that are subject to . . . permitting requirements.” Mot. to Transfer at 14. The Agency

directs the Court to Citizen Advocates for Responsible Expansion, Inc. v. Dole, in which an

agency challenge was transferred out of the District of Columbia “despite one plaintiff being

based out of Washington D.C.” Mot. to Transfer at 14 (citing Citizen Advocs. for Responsible

Expansion, Inc. v. Dole,

, 1239–40 (D.D.C. 1983)); see also Reply in Supp. of

Mot. to Transfer at 9–10 (arguing that “one plaintiff’s residency in the District of Columbia

would not be afforded deference where ‘as a whole, plaintiffs had strong ties to the transferee

forum and little connection to the District of Columbia’” (quoting Van Antwerp,

n.4)).

Though these arguments carry some heft, they ultimately fail to persuade. To start, the

Agency provides no evidence casting doubt on American Forest & Paper Association’s

allegation that it resides in Washington, D.C. And, in any event, as the Agency notes, deference

to a party’s forum choice “require[s] an individualized case-by-case analysis,” not a per se rule

9 eviscerating deference if only one of several plaintiffs resides in the District of Columbia. Van

Antwerp,

n.4.

“[I]n consideration of all relevant factors,” the Court concludes that deference is

warranted here.

This is not a case like Citizen Advocates for Responsible Expansion, Inc. in

which one of four plaintiffs was located in the District of Columbia but the remaining plaintiffs

all had “strong ties to the Northern District of Texas” and “little connection” to the District of

Columbia. 561 F. Supp. at 1239–40. Of the five plaintiffs here, only two reside in the Western

District of Washington, and the remaining three reside in the Eastern District of Washington,

Oregon, and Washington, D.C. See Compl. ¶¶ 17–21. A majority of the plaintiffs thus lack

connection to the Agency’s proposed transferee district. 2 And in further contrast to Citizen

Advocates for Responsible Expansion, Inc., for the reasons discussed at greater length in Section

III.A.2.ii, infra, “[i]t is simply not true that this district has no meaningful connection to or

interest in the controversy,” Oceana, Inc.,

. Indeed, the Agency’s leadership,

which is headquartered in Washington, D.C., played an indispensable role in the promulgation,

rescission, and ultimate reinstatement of the challenged rule. The Court will thus “give some

weight to the plaintiffs’ choice of forum.” Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. for the

W. Dist. of Tex.,

, 62 n.6 (2013).

Furthermore, such deference “outweighs” the Agency’s “request to send this case to a

particular court” in the Western District of Washington. Stewart,

. Unlike

a plaintiff’s forum preference, a defendant “is not ordinarily entitled to deference . . . over [a]

[p]laintiff’s opposition” unless the defendant “establish[es] that the added convenience and

2 The Agency also contends that the majority of the plaintiffs are “headquartered in the Pacific Northwest.” Mot. to Transfer at 14. But

(a) speaks to a “district or division,” not geographic regions like the Pacific Northwest comprising “district[s] or division[s].”

10 justice of litigating in their chosen forum overcomes the slight deference” afforded to the

plaintiff. Tower Lab’ys, Ltd. v. Lush Cosmetics Ltd.,

(D.D.C. 2018).

As discussed in Section III.A.2.iii, the Agency has not shown that it would be more convenient

to litigate this case in the Western District of Washington. As a general matter, in an APA case,

“the convenience” of litigation is “not likely to be relevant.” Oceana, Inc.,

(cleaned up). In addition, only two of the five plaintiffs (and neither of the defendants) are from

the Western District of Washington, so the Court is hard pressed to conclude that there is much,

if any, “added convenience” to transfer. 3 Tower Lab’ys, Ltd.,

. Instead,

the Court finds “the [Agency’s] request unduly restrictive, given” the plaintiffs are

“geographically dispersed” throughout the country and the alleged “situs of the case expands

beyond” the Western District of Washington specifically. Stewart,

.

The parties’ forum preferences thus weigh against transfer.

ii. Claims’ Connection to the Forum

In challenges to agency action, “courts generally focus on where the decisionmaking

process occurred to determine where the claims arose.” Nat’l Ass’n of Home Builders v. EPA,

(D.D.C. 2009). “An administrative claim is said to arise in this district

if it was drafted, signed, and published in this district, and if the controversy ‘stems from the

formulation of national policy on an issue of national significance.’” Oceana, Inc.,

After the defendants filed their motion to transfer, a handful of Native American tribes and the State of Washington moved to intervene as defendants. As discussed in Section III.B, infra, the Court will grant these motions to intervene. But it is not inclined to give the intervenor- defendants’ transfer preferences any significant weight in the analysis. As a formal matter, the intervenors did not enter the picture until after the Agency filed its motion to transfer. The Court is also concerned, as a general matter, that deference to permissive intervenors’ forum preferences would create a perverse incentive to intervene to tip a Court’s transfer analysis. In addition, the parties here have sought to intervene independent of the Court’s transfer analysis, implying their willingness to litigate this case outside their home jurisdictions.

11 3d at 6 (quoting Greater Yellowstone Coal. v. Kempthorne, No. 07-cv-2111,

,

at *5 (D.D.C. 2008)). For administrative claims arising from “a cooperative program between

federal and state governments,” this factor weighs against transfer even if the action “had [its]

genesis” in a particular state as long as there are “meaningful ties” to the District of Columbia.

Stewart,

(cleaned up).

Here, there is no question that the plaintiffs challenge a final rule “drafted, signed, and

published” in the District of Columbia. Oceana, Inc.,

. Indeed, Administrator

Michael S. Regan signed both the proposed and final water-quality standards, and the notice of

the proposed rule directed all comments to the Agency’s headquarters and Office of Water

located in Washington, D.C. See Restoring Protective Human Health Criteria in Washington,

, 19046, 19061 (Apr. 1, 2022) (proposed rule); Restoring Protective Human

Health Criteria in Washington,

, 69183, 69198 (Nov. 18, 2022) (final rule).

Although Washington first proposed the water-quality standards, the plaintiffs challenge a final

federal rule “promulgated pursuant to authority belonging only to the” Administrator, and the

Administrator “ultimately signed them.” Oceana, Inc.,

; see

(c) (detailing how the Administrator reviews, revises, and publishes water-quality

standards—as illustrated in this case).

What is more, the Agency submitted declarations confirming that Washington, D.C.

officials were not mere “rubber-stamp[s]”; rather, they played an essential role in developing,

revising, and finalizing the rule. Stewart,

. For example, Sara Hisel

McCoy, an Office of Water official located in Washington, D.C., represents that her office

oversees the “review and approval or disapproval of new or revised [water-quality standards]

submitted to EPA by states and the promulgation of federal standards.” Decl. of Sara Hisel

12 McCoy ¶ 2, Dkt. 19-2. This D.C.-based office “partner[ed]” with the Agency’s Region 10 office

in Seattle, Washington to promulgate the rule challenged in this action. Id. ¶ 3. Both offices

formed a “workgroup . . . responsible for” promulgating the rule that included “senior leadership

in both offices,” and both offices “worked in partnership [at] each . . . step[] in developing drafts

of the Proposed and Final Rules.” Id. ¶ 5. The draft proposed rule was submitted “to the Office

of Water” in Washington, D.C. “for review and input” before reaching the desk of Administrator

Regan. Id. ¶ 6. During the comment period, headquarters and Region 10 staff cosponsored

“public hearings” on the proposed rule. Id. ¶ 7. The working group then jointly collaborated to

finalize the rule “and draft responses to comments” before Administrator Regan signed off in

Washington, D.C. ¶ 8. The McCoy declaration all but confirms that D.C.-based officials had

“heavy” “personal involvement” in the rule’s promulgation, providing a meaningful “link

between this controversy and the District of Columbia” even though this case “will [primarily]

have an impact on the residents” of Washington. Wilderness Soc’y v. Babbitt,

, 13–14 (D.D.C. 2000).

The declaration of Hanh Shaw, a Region 10 branch manager, corroborates McCoy’s

representation that Region 10 and headquarters officials “worked in tandem . . . to promulgate

the challenged final rule.” Decl. of Hanh Shaw ¶ 10, Dkt. 19-3. Shaw represents that Region 10

staff “provided technical support” and “assisted” with the rule’s drafting but does not, at any

point, suggest Region 10 led the charge more than the headquarters team.

Shaw does note,

however, that Region 10 led “EPA’s public outreach efforts and facilitate[ed] engagement with

federally-recognized tribes in Washington and affected tribes in neighboring states.” Id. ¶ 11.

Engagement with stakeholders outside the District of Columbia counts for something, but the

Court is primarily concerned with where the “decisionmaking process occurred to determine

13 where the claims arose.” Stewart,

(emphasis added) (quoting Nat’l Ass’n

of Home Builders,

).

At bottom, both McCoy and Shaw represent that at least half the decisionmaking—i.e.,

discussions, promulgation, and revisions of the rule—occurred in Washington, D.C. To boot, the

final sign off occurred exclusively here. Headquarters officials thus offered far more than

“minor editorial comments” or “explanatory information”; rather, as the declarations confirm,

D.C.-based officials performed “the key policy work that resulted in the challenged” rule. Mem.

Op. at 7–8, Oak Ridge Env’t Peace All. v. Perry, No. 17-cv-1446 (D.D.C. Mar. 23, 2018). The

Court thus concludes that the plaintiffs’ claims have “meaningful ties” to the District, counseling

against transfer. Stewart,

.

Given the foregoing analysis, the Court has no need to accept the plaintiffs’ invitation to

delve into the “as-yet-unfiled administrative record.” See Opp’n to Mot. to Transfer at 16, Dkt.

24. That said, the Court’s decision is informed by another factor clearly relevant to where the

plaintiffs’ claims arose: namely, the change in presidential administrations. The Agency’s

reversals in 2020 and 2022 coincided with changes in leadership in Washington, D.C. In

contrast, the Agency has not provided evidence that the elections changed either regional agency

personnel or circumstances on the ground in Washington state. Circumstantially then, it would

appear that the most significant developments related to this case occurred in the nation’s capital.

The Agency’s arguments to the contrary are unavailing. It asserts that this factor weighs

in favor of transfer because Region 10 provided “extensive input . . . at each step” and “led all

outreach efforts.” Mot. to Transfer at 15. But that is not sufficient. The role played by non-

D.C.-based officials in this case did not “overshadow[]” “any role played by officials in the

District of Columbia.” Pac. Mar. Ass’n v. NLRB,

(D.D.C. 2012) (cleaned

14 up). Quite to the contrary, as the Agency admits, “the ultimate decision to promulgate the

challenged rule was made by EPA headquarters” and the decisionmaking process was otherwise

a “partnership” between headquarters and Region 10. Mot. to Transfer at 15. The plaintiffs also

cast doubt on the Agency’s assertion that Region 10 was the only entity spearheading outreach.

See Opp’n to Mot. to Transfer at 16–17.

Further, the Court will not endorse the Agency’s effort to bootstrap its arguments about

the “local nature” of this controversy—a separate public-interest factor discussed in Section

III.A.3.iii, infra—to this private-interest factor. Mot. to Transfer at 16. It is well established

“[i]n cases brought under the APA” that the forum-connection factor centers “on where the

decisionmaking process occurred,” not on where the agency’s action has its most concentrated

effect. Nat’l Ass’n of Home Builders,

.

The Court thus concludes that this factor weighs against transfer.

iii. Convenience Factors

The convenience factors—the convenience of the parties, the convenience of the

witnesses, and ease of access to sources of proof—are neutral. Although the parties agree that

the convenience of the witnesses and the ease of access to proof are neutral, see Mot. to Transfer

at 17; Opp’n to Mot. to Transfer at 18, they disagree about the convenience to the parties. The

Agency posits that this factor is neutral, Mot. to Transfer at 17, but the plaintiffs contend that

Washington, D.C. is more convenient to the parties because “[a]ll attorneys of record reside in

this District, and nothing about the case requires the physical presence of the non-resident

Plaintiffs,” Opp’n to Mot. to Transfer at 18 (cleaned up).

The Court is unpersuaded. It agrees with the Agency that this “factor considers the

convenience of the ‘parties,’ not the parties’ counsel,” Reply in Supp. of Mot. to Transfer at 13,

15 and generally the “location of counsel carries little, if any, weight” in a transfer analysis,

(quoting Armco Steel Co., L.P. v. CSX Corp.,

(D.D.C. 1991)). This is also

not a case like Oceana, Inc. v. Pritzker, in which the plaintiff “has just one staff member in that

district . . . and it would be forced to retain local attorneys or have its own lawyers admitted pro

hac vice there.”

. Rather, two of the plaintiffs reside in the Western District

of Washington. In any event, in an APA case such as this, it is exceedingly “unlikely that the

parties or the lawyers for either side will have to appear in court often” given the electronic

format of the administrative record. Id.; see Reply in Supp. of Mot. to Transfer at 12 (“As

Plaintiffs acknowledge, this case will be resolved on the administrative record without witnesses

and the convenience-of-witnesses and ease-of-access-to-proof factors are neutral.”).

This factor is thus neutral. And contrary to the plaintiffs’ assertion, neutrality does not

per se counsel against transfer. Opp’n to Mot. to Transfer at 18. A neutral factor neither weighs

in favor of nor against transfer. See Ngonga v. Sessions,

(D.D.C.

2018). The movant does, however, carry the ultimate burden to show all the factors tip in favor

of transfer. As such, if all the factors on the whole are neutral, the movant would have

necessarily failed to carry its burden. But that does not mean that each neutral factor itself

counsels against transfer.

* * *

On balance, the private-interest factors thus tip against transfer.

3. Public Interest Factors

The public-interest factors relevant to transfer are: (i) “the transferee’s familiarity with

the governing laws”; (ii) “the relative congestion of the calendars of the transferor and transferee

16 courts”; and (iii) “the local interest in having local controversies decided at home.” Stewart,

. The Court will consider each in turn.

i. Transferee Court’s Familiarity

The respective districts’ familiarity with the governing laws does not carry much weight

either way because this case arises from a dispute of statutory interpretation. And the Court

abides by “the principle that the transferee federal court is competent to decide federal issues

correctly.” Oceana, Inc.,

(quoting Flowers,

n.6).

When “both courts are competent to interpret the federal statutes involved . . . there is no reason

to transfer or not transfer based on this factor.” Nat’l Wildlife Fed’n v. Harvey,

(D.D.C. 2006). If anything, this Court arguably “has more experience with APA cases,”

slightly weighing against transfer. Stewart,

.

The Agency’s contrary arguments fail to persuade. It contends that “there has been prior

litigation regarding the human health criteria applicable to Washington waters occurring in the

Western District of Washington.” Mot. to Transfer at 10–11. It details efforts (1) to compel the

Agency to initiate rulemaking before the 2016 rule took effect and (2) to challenge the now-

rescinded 2020 rule. See Mot. to Transfer at 11–12 (first citing Puget Soundkeeper All. v. EPA,

No. 13-cv-1839,

(W.D. Wash. Sept. 18, 2014) (action to compel rulemaking

on water-quality standards); then citing Puget Soundkeeper All. v. EPA, No. 16-cv-293,

(W.D. Wash. Aug. 3, 2016) (same); then citing Compl., Washington v. EPA, No.

19-cv-884 (W.D. Wash. June 6, 2019), Dkt. 1 (challenging the EPA’s 2020 rule rescinding its

2016 water-quality standard); and then citing Compl., Puget Soundkeeper All. v. EPA, No. 20-

cv-907 (W.D. Wash. June 11, 2020), Dkt. 1 (same)). The “relevant inquiry,” however, “is not

whether a certain court is familiar with the factual and legal history of a case, but whether it is

17 more familiar with the governing laws.” Ctr. for Biological Diversity v. Ross,

(D.D.C. 2018) (cleaned up). Here, the “prior litigation” had nothing to do with the

central legal issue here: namely, whether the Agency’s rulemaking in this case comported with

the Clean Water Act and the APA. Instead, the suits to compel rulemaking reached only the

issue whether the Agency’s duty to promulgate a water-quality standard was triggered, see Puget

Soundkeeper All.,

, at *2–6, and whether the Agency’s proposed timeline for

rule promulgation was reasonable, see Puget Soundkeeper All.,

, at *2–4. And

the challenges to the 2020 rule were dismissed without adjudication on the merits. See Joint

Stipulated Mot. to Dismiss, Washington v. EPA, No. 19-cv-884 (W.D. Wash. Jan. 30, 2023),

Dkt. 88; Joint Stipulated Mot. to Dismiss, Puget Soundkeeper All. v. EPA, No. 20-cv-907 (W.D.

Wash. Jan. 30, 2023), Dkt. 34.

As such, none of the earlier challenges in the Western District of Washington reached the

heart of this dispute. The Agency has provided no evidence that courts in the Western District of

Washington have weighed in on the Agency’s rulemaking here, and the plaintiffs suggest that no

such cases exist. See Opp’n to Mot. to Transfer at 20. Although the Western District of

Washington may be familiar with the “factual and legal history” of this case, Ctr. for Biological

Diversity,

, it has no special competence with the issues of law presented.

Accordingly, this factor is neutral or slightly weighs against transfer.

ii. Court Congestion

Concerning “the relative congestion of the courts’ calendars,” Oceana, Inc.,

, the Court concurs with the parties that this factor is neutral. See Mot. to Transfer at 12;

Opp’n to Mot. to Transfer at 21. Per the Administrative Office’s statistics (as reported by the

Agency), this District “takes about 4.7 months to resolve civil case as compared to 6.4 months in

18 the transferee district,” and the average caseload here is 418 cases per judge compared to 426

cases per judge in the Western District of Washington. Mot. to Transfer at 12. This factor is

thus neutral.

iii. Local Interest

The final factor the Court must consider is “the local interest in having local

controversies decided at home.” Stewart,

. Among the “public-interest

factors,” local interest is “arguably most important.” Preservation Soc’y of Charleston v. U.S.

Army Corps of Eng’rs,

(D.D.C. 2012) (cleaned up). The Agency argues

that the local interest in this case “heavily” weighs in favor of transfer because the “Final Rule

primarily affects those within the State of Washington.” Mot. to Transfer at 9. It compares this

case to Alaska Wilderness League v. Jewell, in which several environmental groups challenged a

United States Fish and Wildlife Service regulation “allow[ing] certain oil and gas industry

players to unintentionally ‘take’ . . . Pacific walruses in the Chukchi Sea off the coast of Alaska.”

(D.D.C. 2015). In that case, Judge Bates transferred the matter to the

District of Alaska because the regulation “most directly affect[ed] Alaskan lands, livelihoods,

waters, and wildlife” and “concern[ed] only the incidental-take of Pacific walruses . . . more than

a few steps removed from the national issue of how, where, or when America gets its oil and

gas.”

. In addition, the Agency points to the “wide public interest” in human health

criteria among Washington residents, the state government, and federally recognized tribes.

Mot. to Transfer at 10–11.

The Agency’s arguments carry some force, and the Court does not doubt that the citizens

of Washington have an interest in this case’s outcome. That said, the Agency overplays the

weight of the local-interest factor for several reasons. First, the local nature of the controversy is

19 not as strong as that in Alaska Wilderness League. In deciding to transfer the matter, Judge

Bates placed substantial weight on the fact that the challenged “incidental-take regulation

affect[ed] just one state: Alaska.” Alaska Wilderness League,

. Indeed, he

contrasted the case from Oceana, Inc., in which Judge Boasberg declined to transfer a case about

“government action . . . off the coast of three different states that directly affected the entire Gulf

Coast region.”

This case is closer to Oceana, Inc. than Alaska Wilderness League. By the

Agency’s own admission, the challenged rule—though technically regulating Washington waters

alone—“potentially affects the neighboring States of Idaho and Oregon.” Mot. to Transfer at 9.

Region 10 also consulted “tribes in the Pacific Northwest,” not exclusively in Washington state,

demonstrating the broader impact of the rule outside of state borders. Rule. Id. at 15.

Second, as the plaintiffs suggest, the Agency’s rule is a “question[] of national policy or

national significance.” Oceana v. Bureau of Ocean Energy Mgmt.,

(D.D.C. 2013). The record supports the plaintiffs’ contention that the Agency intends to roll out

the treaty-rights interpretation on a nationwide basis. See Opp’n to Mot. to Transfer at 22. After

promulgating the final rule at issue here, the Agency proposed a different rule incorporating its

treaty-rights interpretation—i.e., setting water-quality standards to protect tribal-reserved

rights—into “a nationally applicable regulatory framework.” See

, 74366-67

(Dec. 5, 2022). In its reasoning for this proposed rule, the Agency noted that it “previously

addressed tribal reserved rights in state-specific” approvals in Washington and Maine but now

seeks to nationalize these requirements. See

at 74365 & n.34. Whether the Agency’s tribal-

rights interpretation is consistent with the Clean Water Act in this case will thus bear on the

effort to adopt this interpretation nationwide. To be sure, the Agency is generally correct that

this case “will be reviewed solely on its own record and not in relation to other EPA actions.”

20 Reply in Supp. of Mot. to Transfer at 5. But the Agency does not deny that the effects of the

Court’s decision will spill beyond Washington and reach the Agency’s efforts to adopt its treaty-

rights interpretation nationwide.

In Stewart v. Azar, the Court denied a motion to transfer on a similar basis. There, Judge

Boasberg declined to transfer a challenge to the Department of Health and Human Services’s

approval of Kentucky’s effort to enact Medicaid work requirements. See 308 F. Supp. 3d at

249–50. Although the effects of the Department’s approval would “be felt ‘locally’ in

Kentucky,” the effects were “spilling out past Kentucky.”

. For example, the

Department “recently approved [another state’s] work-eligibility Medicaid requirements,” and it

invited other states to adopt similar policies.

So too here: the Agency has expressed an

intention to spread its treaty-rights interpretation to other regulated states. The Agency contests

the applicability of Stewart because the challenged rule “is expressly limited in application to”

Washington’s surface waters. Reply in Supp. of Mot. to Transfer at 3. But in Stewart the rule

was also confined to a single state, and the Court nevertheless accounted for the broader context,

including the Agency’s efforts to replicate the rule in other states. See

.

Third, as discussed in Section III.A.2.ii, supra, this case differs from those in which “a

local federal-agency office made a decision involving local resources that are located entirely in

a proposed transferee district.” Stewart,

. Rather, a significant portion of

the decisionmaking behind the challenged rule occurred in Washington, D.C., thus establishing

at least a modicum of local interest in retaining the case in the District.

In sum, the local-interest factor is either neutral or slightly favors transfer. Though this is

the “most important” public-interest factor,

“no single factor is dispositive in a motion to

transfer.” Oceana, Inc.,

. The majority of factors are either neutral or counsel

21 against transfer. Given the significant involvement of D.C.-based officials in promulgating the

final rule at issue here and the potential national effects of the Court’s decision, the Court will

thus deny the Agency’s motion to transfer to the Western District of Washington.

B. Motion to Intervene

The Court turns next to the Tribes’ and the State of Washington’s motions to intervene.

The Court will grant both motions.

1. Tribes

The Quinault Indian Nation, Lower Elwha Klallam Tribe, Makah Indian Tribe, Port

Gamble S’Klallam Tribe, and Puyallup Tribe of Indians (together, the “Tribes”) move to

intervene, see Dkts. 30, 31, without objection from either party, see Notice of Defs.’ Position on

Intervention at 1, Dkt. 42; Pls.’ Resp. to Tribal Mots. to Intervene at 1, Dkt. 43. Given neither

party opposes permissive intervention under Rule 24(b), the Court “will decide intervention

under that standard without engaging in Rule 24(a) intervention as a matter of right analysis.”

Van Antwerp,

n.2. For permissive intervention under Rule 24(b), the Tribes

must show that they have (1) Article III standing 4 and (2) a “timely motion” based on “a claim or

defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P.

24(b)(1); accord Nat’l Children’s Ctr., Inc.,

. The Court concludes that this test

is satisfied.

To start, the Tribes have demonstrated Article III standing. To “establish standing, a

plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual

or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury

4 As discussed in note 1, supra, the Court assumes without deciding that standing is required for permissive intervention.

22 would likely be redressed by judicial relief.” TransUnion v. Ramirez,

(2021). The Tribes allege that the Agency’s rule is “harmonized” with various treaty protections

of tribal fishing rights. Quinault Nation Mot. to Intervene at 9; see Tribes’ Mot. to Intervene at

6–7. These “treaty fishing rights” protect “healthy” fishing practices—“integral part[s] of

[tribal] culture, spiritual practice, and way of life.” Tribes’ Mot. to Intervene at 7. As such, if

the rule is deemed inconsistent with the Clean Water Act and enjoined, the Tribes’ fishing rights

and source of sustenance may be impaired by “higher levels of pollutants.” Quinault Mot. to

Intervene at 9. In short, the plaintiffs’ desired relief would remove a benefit received by the

Tribes under the challenged policy, satisfying all three components of Article III standing. See

Crossroads Grassroots Pol’y Strategies v. FEC,

(D.C. Cir. 2015).

Further, the Tribes have satisfied the requirements for permissive intervention.

Permissive intervention requires a showing of (1) “an independent ground for subject matter

jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question of law or fact in

common with the main action.” Nat’l Children’s Ctr.,

. First, “this is a federal-

question case [under the Clean Water Act and Administrative Procedure Act,] and the Tribes do

not seek to expand the scope of the Court’s subject-matter jurisdiction,” which would require an

independent basis for jurisdiction. Tribes’ Mot. to Intervene at 18. Second, their motion is

timely because it was filed approximately two months after this suit was filed. See Dkts. 30, 31.

Also, as the existing parties concede, intervention would not be prejudicial nor cause undue

delay. See Nat’l Children’s Ctr., Inc.,

. Third, “the Tribes intend to oppose

[p]laintiffs’ claims and requests for relief, offer defensive arguments, and seek the same relief”

as the Agency, Tribes’ Mot. to Intervene at 19, easily satisfying the liberal “claim or defense”

requirement, see Ctr. for Biological Diversity, 274 F.R.D. at 312–13. Finally, the Court believes

23 that the Tribes’ involvement would advance the “just and equitable adjudication” of this

matter”—specifically, their perspective on the Agency’s treaty-rights interpretation. Id. at 313

(cleaned up).

2. State of Washington

The State of Washington has also moved to intervene. The Agency does not oppose

intervention, see Notice of Defs.’ Position on Intervention at 1, Dkt. 26, and the plaintiffs

“generally do not oppose the motion” either, Pls.’ Resp. to the State of Wash.’s Mot. to Intervene

at 1, Dkt. 27. The plaintiffs do, however, ask for “full[] consider[ation]” of whether Washington

has established Article III standing. Id. In their view, Washington has not asserted a cognizable

injury in fact because vacatur of the Agency’s 2022 rule “would restore the very same state

criteria that Washington itself adopted under the [Clean Water Act’s] regulatory scheme.” Id. at

2. Nor has Washington “claim[ed] that restoration of those standards would inflict additional

costs or other cognizable harms not already imposed by the CWA itself or EPA’s adoption of the

2022 rule.” Id. at 4. An “abstract preference for retaining the federal 2022 rule” is insufficient

for Article III, according to the plaintiffs. Id.

But the plaintiffs overcomplicate the matter. To comply with Article III, a party must

allege that it “suffered an injury in fact that is concrete, particularized, and actual or imminent.”

TransUnion,

. A harm is “concrete” if it shares a “close relationship to a harm

traditionally recognized as providing a basis for a lawsuit in American courts.”

(cleaned up). “[C]ertain harms . . . such as . . . monetary harms” will “readily qualify” under this

test.

And it is well established that the loss of a single dollar is a concrete harm for which a

party may seek redress. See Czyzewsi v. Jevic Holding Corp.,

(2017) (“For

standing purposes, a loss of even a small amount of money is ordinarily an injury.” (cleaned

24 up)); cf. Uzuegbunam v. Preczewski,

(2021) (“Despite being small, nominal

damages are certainly concrete.”). Here, Washington alleges that vacatur of the Agency’s 2022

rule would force it to “use the state regulatory process to readopt the [federal] protective criteria”

as a matter of state law. State of Wash’s Reply in Supp. of Mot. to Intervene at 3, Dkt. 28. It

would need to “spend state resources to conduct rulemaking to restore the protective criteria

[p]laintiffs seek to vacate.”

In simpler terms, vacatur would cause Washington to initiate a

costly rulemaking, which is a pocketbook injury. A decision to uphold the Agency’s final rule,

however, would obviate the need for any cost-inducing rulemaking. That suffices to show an

injury in fact.

The plaintiffs direct the Court to National Fair Housing Alliance v. Carson,

(D.D.C. 2018), but that case does not say otherwise. There, the Department of Housing

and Urban Development decided to withdraw “an Assessment Tool” used by local governments

and public-housing authorities to track their compliance with the “the duty to affirmatively

further the purposes and policies of the Fair Housing Act.”

. Withdrawal of the

Assessment Tool would in turn require local jurisdictions to track their own “progress in

meeting” the Fair Housing Act’s requirements.

at 22–23. As relevant here, the State of New

York moved to intervene as a plaintiff to enjoin withdrawal of the Tool.

. New York

alleged that the Department’s action injured its “proprietary interests” by making “it more

difficult for . . . local jurisdictions to analyze barriers to fair housing choices or identify

meaningful actions to address these barriers.”

. Judge Howell found this argument

lacking. To start, New York was not itself “a local government entitled to use the . . . Tool,” so

its injury was “speculative”—i.e., based on the assumption that local governments’ reports to the

state would be “less ‘robust’ or ‘complete’” without the Tool.

at 64–65. In addition, New

25 York failed to establish standing on a parens patriae theory because it did not show that its

interest in “eradicating discrimination in all its forms” was meaningfully undermined “without a

published Assessment Tool” given the Fair Housing Act’s substantive requirements continued to

apply in full force.

at 65–66.

Here, Washington’s alleged harms do not suffer from the same faults. Unlike the

challenged agency action in National Fair Housing Alliance, the challenged rule affects the

entire state, not merely a subdivision thereof. Moreover, if the Court vacates the Agency’s rule,

Washington will incur expenses to initiate a rulemaking to reinstate the federal rule’s substantive

requirements as a matter of state regulation. Washington’s commitment to the federal standard is

in no sense abstract; rather, it has a track record of defending the Agency’s heightened water-

quality standards. Cf. Susan B. Anthony List v. Driehaus,

, 164 (2014) (“We have

observed that past enforcement against the same conduct is good evidence that the threat of

enforcement is not chimerical.” (cleaned up)). For example, during the notice-and-comment

period for the 2020 rule, Washington objected to the Agency’s proposed rescission of the 2016

rule, see

, 38152 n.17 (Aug. 6, 2019), and it later sued to prevent the

rescission from taking effect, see Compl., Washington v. EPA, No. 19-cv-884 (W.D. Wash, June

6, 2019), Dkt. 1. That is all to say that unlike National Fair Housing Alliance, the state’s alleged

harm is rooted in a nonspeculative pocketbook injury that would arise if the Agency’s final rule

is set aside.

Contrary to the plaintiffs’ assertion, Pls.’ Resp. to State of Wash.’s Mot. to Intervene at 3,

Dkt. 27, Arizona v. EPA,

(D.C. Cir. 2023), is also distinguishable. There, the

Environmental Protection Agency “extended the deadline for compliance with a revised national

drinking water regulation, which in turn extended the deadline for states to enforce conforming

26 revisions to their own regulations.”

. Five states challenged the extension, claiming

that “delayed enforcement of tougher regulations” would cause “residents to suffer health

problems” and the states would in turn “lose money” on increased expenditures “on programs

like Medicaid.”

. The D.C. Circuit rejected this theory of standing. In its view, the

states’ alleged injuries were “self-inflicted” because nothing prevented them “from meeting their

obligations ahead of the [extended] federal deadline.”

The states also failed to explain what,

if any, additional “costs would flow” from earlier compliance with the original deadline.

. Here, in contrast, the Court’s decision will directly bear on state coffers. If the Court

vacates the Agency’s rule, Washington will need to spend money that it would not have

otherwise spent on promulgating a more protective water-quality standard. If the Court leaves

the Agency’s rule in place, Washington can continue complying with the federal water-quality

standard without spending a dime.

Given Washington has established its Article III standing, the Court turns to the

requirements for permissive intervention under Rule 24(b). Here too, Washington passes the

test. First, as discussed in Section III.B.1, supra, this is a federal-question case, and Washington

is not seeking to expand the scope of the Court’s subject-matter jurisdiction, see State of Wash.’s

Mot. to Intervene at 12–13. Second, its motion is timely because it was filed approximately two

months after the plaintiffs filed suit. Also, the existing parties do not object to intervention,

suggesting a lack of prejudice. Third, Washington has a “claim or defense” under Rule 24(b)’s

liberal standard. Fed. R. Civ. P. 24(b). It seeks to intervene to “defend the human health criteria

EPA restored” and that “Washington . . . consistently use[s],” and it will support the Agency’s

efforts to defend the final rule. State of Wash.’s Mot. to Intervene at 12. Finally, Washington’s

involvement would advance the “just and equitable adjudication” of this matter because it can

27 weigh in on the local effects of the Agency’s rule and any implementation issues. Ctr. for

Biological Diversity,

.

To the extent Washington must comply with Rule 24(b)(2), it clears that hurdle too. Rule

24(b)(2) provides that “[o]n timely motion, the court may permit a federal or state governmental

officer or agency to intervene if a party’s claim or defense is based on . . . a statute or executive

order administered by the officer or agency.” Fed. R. Civ. P. 24(b)(2). Assuming Washington

state counts as a “state governmental . . . agency,” it may intervene because the plaintiffs’

challenge arises under the Clean Water Act, which is a “statute” Washington’s Department of

Ecology “administer[s].” Id.; cf. PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology,

(1994) (“[T]he Clean Water Act establishes distinct roles for the Federal and state

Governments.”).

The Court will thus grant Washington’s motion to intervene.

CONCLUSION

For the foregoing reasons, the Court will deny the defendants’ Motion to Transfer, Dkt.

19, and grant the State of Washington’s, Quinault Indian Nation’s, and the remaining Tribes’

Motions to Intervene, Dkts. 20, 30, 31. A separate order consistent with this decision and

containing a schedule for further proceedings accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge June 28, 2024

28