Environmental Quality Act permits-intervention.

WORKING DRAFT
2013
STATE OF
WYOMING
13LSO-0230

HOUSE BILL
NO.

HB0140

Environmental Quality Act
p
ermits-
i
ntervention
.

Sponsored by:
Representative(s) Lubnau and Senator(s) Bebout and Perkins

A BILL

for

AN ACT relating to environmental quality; providing that the state may intervene in any
state
action challenging
the issuance of a permit or
an activity
conducted or proposed to be conducted pursuant to

a permit issued
under
the
E
nvironmental
Q
uality
Act
as specified;
providing that a federal court may c
onsider a Wyoming state statute
when determining whether to allow th
e
state to enter an appearance as a permissive
intervenor
as specified;
providing that
the prevailing party
shall be entitled to costs of litigation as specified
;
specifying
applic
ability;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 35
‑
11
‑
100
3
and
35
‑
11
‑
100
4

are

created
to read:

35
‑
11
‑
100
3
.

Right of state to intervene
; findings
.

(a)

The legislature finds the state has a compelling interest in activities authorized pursuant to permits issued under this act. It is the intent of the legislature to protect the state's interests from unwarranted actions seeking to impede or curtail activities lawfully proposed or conducted pursuant to state issued permits.

(
b
)

The state of Wyoming
, upon the discretion of the attorney general,
may intervene as a matter of right in any
state
court

action
challenging
the issuance of a permit or
an
activity
conducted or proposed to be conducted
pursuant
to
a permit issued under this chapter
.

Intervening under this section, t
he state shall support the position of the
permittee
if the attorney general determines that
:

(
i
)

If the challenge is to the issuance of the permit, t
he permit was issued pursuant to applicable law; or

(ii)

If the challenge i
s
to an activity conducted or proposed to be conducted pursuant to a permit, t
he
challenged
activit
y

is
authorized under the permit.

(c)

A federal court may consider this section when determining whether to
grant a motion to intervene filed by
the state of Wyoming pursuant to Federal Rules of Civil Procedure, Rule 24(b
)(
2
)(A) or similar rule in an action challenging the issuance of a permit or an activity conducted or proposed to be conducted pursuant to a permit issued under this chapter.

(
d
)

Nothing in this section shall in any way limit any existing civil or criminal
cause of action
arising out of a violation of any provision of this act or any rule, regulatio
n, standard, permit, license,
variance or order adopted hereunder.

35
‑
11
‑
100
4
.

Litigation costs.

(a)

The
court, in issuing a
final order in any action brought pursuant to this
act
,
may award costs of litigation
to any
party
when
ever
the court determines such an award is appropriate
.
The state of Wyoming shall
be considered a
prevailing party for purposes of
recover
ing
litigation costs if
the state
intervened pursuant to W.S. 35
‑
11
‑
100
3

on behalf of the
permittee
and the
pe
rmittee
is a prevailing party in
the action.

(b)

This section shall not apply to an action brought under a section of this act which specifically provides fo
r an award of litigation costs.

(c)

In the event litigation costs are awarded pursuant to subsection (a) of this section
in an action in which the state of Wyoming intervened pursuant to W.S. 35
‑
11
‑
100
3
, public funds of the state of Wyoming shall only be expended to provide for litigation costs upon a finding by the court that
litigation
costs
cannot be reasonably recovered from the
permittee
.

(
d
)

As used in this section:

(
i
)

"L
itigation costs" shall
include
but not be limited to reasonable attorneys' fees, expe
rt witness fees and court costs;

(ii)

"
Reasonable attorneys' fees
"
shall
be
determined by the court
, but shall be limited to actual
time
and expense
worked and billed during the
course of the
action
by attorneys or legal staff
.

Section
2
.
This act shall apply to
all actions filed
on or after July 1, 201
3
.

Section
3
.
This act is effective July 1, 201
3
.

(END)

1
HB0140