Episode 56 Transcript: Legal Intervention
CLARICE: Hello, everybody. Welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everybody. I’m Marisa Desautel an environmental attorney in Rhode Island, oh, and Massachusetts, by the way.
CLARICE: And I’m Clarice. I’m still going to hold strong like Cher and Beyond, Clarice. I’m coming in with your questions, your comments, your topics. And today’s topic I actually suggested. Our last episode we spent a lot of time talking about Mayflower Wind and other towns filing a motion to intervene and what that looks like, but we never talked about what intervening looks like generally and what that actually means.
CLARICE: So today we’re shifting a little bit away from the more environmental topics and we’re going a little bit closer towards the legal topics. We haven’t done a more legal episode in a little while.
MARISA: Because they’re dry.
MARISA: Yeah. So I’m happy to talk about anything obviously because I’m a lawyer, but I feel as though when you start getting into civil procedure is where the legal realm gets very boring. You know, unless you’re a nerd and you love to study jurisprudence and think of litigation strategy, topics like intervention can be fairly unsexy. So I thought it would be best to proceed where I can provide a general overview of what it is and then maybe you just ask questions that you think will help to be more explanatory; does that make sense?
CLARICE: Yes. I figured just some general context since we talked about it so much last episode. We’re going to go back a little bit and give you guys some foundation.
MARISA: Don’t laugh. I ended up Googling intervention just because I wanted to see if the definition that I have in my head meets the Oxford legal definition, as well.
CLARICE: Oh, how close were you?
MARISA: I was pretty close. I was pretty close. I missed a couple of smaller details that I think are really important, so I’m actually just going to read the definition. In law intervention is a procedure to allow a nonparty to join ongoing litigation either as a matter of right or at the discretion of the court without the permission of the original litigants.
[0:03:08] CLARICE: Okay. Not far off from what I had.
CLARICE: So tell me what this is person to person.
CLARICE: We’re not counting Webster as a person.
MARISA: Okay. In civil litigation the mechanism used to begin a civil action is called a complaint and that’s what you see being served on people in the movies and television where the process server runs up and goes, you’ve been served, and then, you know, runs away. That doesn’t actually happen. But the complaint is –
CLARICE: Oh, I wish.
MARISA: What’s that?
CLARICE: I said I wish.
MARISA: A complaint is a legal pleading that includes factual allegations that the plaintiff is saying to the court, this is what happened, and then goes into its counts for relief. And those can include torts, contract claims, trespass, anything to do with damages really. Damages are generally the ultimate outcome from civil litigation. Most people are looking to be made whole and the easiest way to do that generally is through monetary means. There are other claims that you can seek compensation for in a nonmonetary capacity including things like conversion which means someone took something from you. It’s not replaceable. You want it back.
In the criminal context – I don’t practice criminal law, so I’m not speaking to those procedures, but in civil litigation intervention comes shortly after the complaint. It’s supposed to come shortly after the complaint is filed with the court, served on the defendant. Now, the defendant in every civil action has the obligation and the responsibility to file something called an answer to the complaint and the answer goes through all of the factual allegations and either admits them or denies them or comes up with another response that I won’t bore you with. And then they can assert things called affirmative defenses as in the doctrine of laches or unclean hands where the defendant says, hey, you said that I did this, how about the fact that you did this, or you did X, I did Y, and you slept on your rights, you never did anything about the fact that I did Y. The purpose of the complaint and the answer is to set up the foundation for discovery which is the process by which parties seek information from each other.
[0:06:15] CLARICE: And at this point we’re still talking about party A who filed the complaint and party B who answers?
MARISA: Yes. Intervention should come in theory somewhere between the complaint and answer process and discovery. Sometimes parties aren’t aware that they should try to intervene until discovery gets going because that’s when subpoenas are issued. That’s when depositions are taking place. That’s when the parties start talking and gathering information for their specific side. And I think that we were talking about the intervention standard at an administrative level in the episode about Mayflower; is that right?
MARISA: So it’s pretty similar except that administrative actions are not in court. They’re usually before an agency or tribunal. And the agencies and tribunals, at least in Rhode Island, adopt rules of civil procedure that are very similar to what goes on in superior court in Rhode Island for purposes of intervention, discovery to a certain extent, motion practice, proceedings including testimony, oral argument. And the Mayflower matter had to do with whether or not cities and towns should be appropriately given intervention status before the Energy Facility Siting Board which is an administrative tribunal.
And it’s a classic intervention situation where you’ve got party A which is the wind developer and party B really being the regulator, the Energy Facility Siting Board. They’re not a party, but, you know, they’re the case caption. And then the – not the defendants but the town who is going to be experiencing landfall as part of the project. And by landfall I mean these offshore wind cables have to make their way to land at some point to connect with the energy infrastructure on land. So should cities and towns that are not experiencing landfall be allowed to intervene and participate before the Energy Facility Siting Board.
[0:09:04] CLARICE: And that’s kind of the general pulling it back to the bigger overview. That’s essentially what intervention comes down to is you have party V versus or working with party B. And then you have this party C saying, hey, I’m not named in this, but I’m also being affected and I feel like I need to be heard. And that’s sort of the basis of what starts their intervention process.
MARISA: Yeah. That’s right. The interest that you just talked about – why do I keep doing air quotes today? God. I hate when people do that.
CLARICE: It’s a podcast. Actually, nobody would have heard you.
MARISA: I know, but it’s irritating.
CLARICE: The good news is nobody hears them.
MARISA: That makes it even more stupid. So the interest element is important because how do you determine whether or not parties that are already participating in a particular proceeding can adequately represent your interests. How do you make that determination.
CLARICE: I’m going to default to our favorite legal answer of –
MARISA: It depends.
CLARICE: — it depends.
MARISA: Yeah. Well, if you’re the party trying to intervene you’re going to try to make that showing that you, as an intervener, have a completely separate and distinct set of concerns and damages than everyone else that’s already involved.
CLARICE: Do you find – and maybe this is too specific a question, but have you ever come across a case where a party is trying to intervene and, like you said, they’re saying, my interests are unique and I’m the best person to make that case, therefore, I should be included and heard? Have you ever found a case where one or the other party will argue and say, actually, we’re in alignment, I got this?
MARISA: Yes. And usually it’s a party that does not want the intervener to be granted permission to participate because they feel that it will slow the proceedings down. It will interfere with their legal strategy. It will cut into their damages claim or some other self-serving interest. That sounds really negative, but, I mean, at the end of the day that’s what it comes down to. And the other distinction I wanted to mention is sometimes you’ve got intervention by right. Sometimes you’ve got intervention by permission and that generally is – intervention by right is a right conferred by statute in Rhode Island or sometimes regulation.
The legislature in Rhode Island might say, in the context of Mayflower the town of Portsmouth is the town experiencing landfall, so they shall be granted intervention by right. They don’t have to show or make an argument to the EFSB that they belong in the proceeding. Every other town that’s not granted or given intervention by right status has to prove that they belong, that their interests are not being served, they’re the only party that can fully represent their own interests. Or in the Mayflower case, it had to do also with whether the proceeding and the matter was of such importance that the EFSB thought intervention was appropriate.
[0:13:03] CLARICE: Okay. That’s a helpful kind of second layer to add to that.
MARISA: Yeah. Right. I just threw that in at the end.
CLARICE: I know, right. Right as we’re closing out, something to think about. So, yeah. It’s not our most exciting topic, but given that we spent all of last episode talking about this project in towns seeking to intervene we should tell you what intervening means.
MARISA: That’s right.
CLARICE: So if you do have follow-up questions if you’re still awake, send them in. If this is your nighttime podcast, good night.
MARISA: Sleepy time.
CLARICE: Yeah. You can reach out to us at Help@DesautelESQ. You can hit us up on all of the socials. We are on Instagram, Twitter, I believe Facebook and recently on YouTube. So if you want to see all those exciting air quotes and figure out what words she was adding them to –
MARISA: Please don’t:
CLARICE: On that note, have a good one, everybody. Enjoy the rest of your day or night.
MARISA: Thanks, everyone.
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