Mere Prospect of Agency Policy Shift Is Not “Adversity”: Fifth Circuit Tightens Adequate-Representation Showing for Intervention to Defend Federal Rules

Introduction

In State of Louisiana v. Burgum, No. 24-30658 (5th Cir. Apr. 1, 2025), the Fifth Circuit addressed whether an industry trade association can intervene on the government’s side to defend a federal regulation where the agency is already defending the rule. The American Petroleum Institute (API) sought to intervene to support a Bureau of Ocean Energy Management (BOEM) rule requiring certain current lessees of offshore facilities in the Gulf of America to post additional “financial assurance” to cover eventual decommissioning costs. Several states (Louisiana, Mississippi, and Texas) and trade associations representing small and mid-sized companies sued to enjoin and vacate the rule, claiming it imposes heavy new financial burdens. API, whose membership spans companies of all sizes (including former and current lessees), moved to intervene either as of right or permissively, arguing it would bring a distinct defense of the rule.

The district court denied intervention. On appeal, API argued that BOEM would not adequately represent its members’ interests—especially in light of a subsequent Secretarial Order directing plans to suspend, revise, or rescind the rule. The Fifth Circuit affirmed. The opinion, authored by Judge Carl E. Stewart, clarifies what it takes to overcome the presumption that a governmental defendant adequately represents would-be intervenors who share the same ultimate litigation objective, and it reinforces the district court’s broad discretion to channel unique views into amicus participation rather than full-party intervention.

Summary of the Opinion

The Fifth Circuit affirmed the district court’s denial of both intervention as of right and permissive intervention:

Intervention as of right: Because API shared the same ultimate objective as BOEM—upholding BOEM’s financial assurance rule—the presumption of adequate representation applied. API did not rebut that presumption. The court held that mere speculation about possible future divergence (e.g., a Secretarial Order contemplating suspension or revision) is insufficient; there must be concrete, current adversity, collusion, or nonfeasance.
Permissive intervention: The district court did not abuse its discretion by denying permissive intervention after concluding that any unique perspective API might offer could be presented in an amicus brief. The Fifth Circuit reiterated that reversals of denials of permissive intervention are “almost unique,” and this case was not among them.

The court thus left intact the district court’s ruling, without reaching whether API’s failure to attach its proposed answer to the intervention motion (as required by local rule) independently justified denial.

Analysis

Precedents Cited and How They Shaped the Decision

Wal-Mart Stores v. Texas Alcoholic Beverage Commission, 834 F.3d 562 (5th Cir. 2016) — Cited for the de novo standard governing denials of intervention as of right.
Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006) and Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996) (en banc) — Establish the highly deferential abuse-of-discretion standard for denials of permissive intervention; the latter describes it as “exceedingly deferential.”
La Unión del Pueblo Entero v. Abbott, 29 F.4th 299 (5th Cir. 2022) — Provides the Rule 24(a)(2) framework and the heightened “teeth” that the adequate-representation inquiry has when presumptions apply; also the “adversity, collusion, or nonfeasance” ways to overcome the presumption when the same ultimate objective exists.
Haspel & Davis Milling & Planting Co. v. Board of Levee Commissioners, 493 F.3d 570 (5th Cir. 2007) — Clarifies that failure on any one Rule 24(a)(2) requirement defeats intervention as of right, and underscores the focus on issues “currently before” the court.
Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (en banc) — Describes the ordinarily “minimal” showing for inadequate representation, but subject to caveats when presumptions apply.
Brumfield v. Dodd, 749 F.3d 339 (5th Cir. 2014) — Emphasizes that the adequate-representation inquiry has “teeth” where presumptions apply.
Texas v. United States, 805 F.3d 653 (5th Cir. 2015) — Articulates the presumption of adequate representation where the proposed intervenor shares the same ultimate objective as an existing party; describes how to rebut it (adversity, collusion, or nonfeasance).
Guenther v. BP Retirement Accumulation Plan, 50 F.4th 536 (5th Cir. 2022) — Explains what counts as “adversity of interest”: a divergence “germane to the case,” not speculative future divergence.
Bush v. Viterna, 740 F.2d 350 (5th Cir. 1984) — The “mere possibility” of future divergence cannot show inadequate representation.
Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972) and Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) — API invoked these to argue that government and private interests inherently diverge. The panel distinguished them: in each, the intervenors pointed to concrete, case-specific reasons the governmental party would not adequately represent their interests (distinct evidence and remedies in Trbovich; an agency letter limiting injunction scope in Espy).
WildEarth Guardians v. U.S. Forest Service, 573 F.3d 992 (10th Cir. 2009) and Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) — Cited by API but given little weight because they did not apply the same presumption of adequate representation that governs in the Fifth Circuit when parties share a common ultimate objective.
Richardson v. Flores, 979 F.3d 1102 (5th Cir. 2020) — States that when proposed intervenors have a unique view not offered by parties, the “proper procedure” is to appear as amici, not as intervenors. This supported denial of permissive intervention here.
Turner v. Cincinnati Insurance Co., 9 F.4th 300 (5th Cir. 2021) and New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452 (5th Cir. 1984) (en banc) — Confirm that permissive intervention is wholly discretionary; denial is permissible even when Rule 24(b)’s threshold is met.
SEC v. Stanford International Bank, Ltd., 429 F. App’x 379 (5th Cir. 2011) and Kneeland v. NCAA, 806 F.2d 1285 (5th Cir. 1987) — Emphasize how rare it is to reverse a denial of permissive intervention.
Texas v. DHS, 2024 WL 4404421 (5th Cir. Oct. 4, 2024) (unpublished) — Summarily affirmed denial of intervention in materially similar circumstances, reinforcing the Fifth Circuit’s approach.
Moore’s Federal Practice — Quoted for the elements of Rule 24(a)(2) and the structure of the intervention inquiry.

Legal Reasoning

The opinion proceeds in two distinct parts, tracking Rule 24(a) and (b).

1) Intervention as of right (Rule 24(a)(2))

Three elements govern: (i) a protectable interest; (ii) potential impairment of that interest; and (iii) inadequate representation by existing parties. The State and Industry Plaintiffs conceded the first two. The dispute centered on the third.

The court held the presumption of adequate representation applied because API and BOEM share the same ultimate objective: to uphold the financial assurance rule. To overcome that presumption, API had to show “adversity of interest, collusion, or nonfeasance.” The court emphasized:

Adversity requires a present, case-germane divergence, not hypothetical divergence. The court relied on Bush v. Viterna and Guenther to reject mere “possibility” as insufficient.
API’s reliance on Trbovich and Espy was misplaced; in those cases, the intervenors identified concrete features showing inadequate representation (distinct evidence, distinct remedies, or an agency statement constraining the defense). API identified none. Indeed, API conceded it did not yet know BOEM’s exact litigation positions, and the proposed answer it later filed mirrored BOEM’s.
The Secretarial Order directing steps to suspend, revise, or rescind the rule did not show current adversity in this litigation. BOEM continued to oppose a stay of the rule in district court, and that court denied a stay. The court stressed it judges adversity on “matters currently before us,” not potential future shifts.

Conclusion: API failed to rebut the presumption of adequate representation. The court therefore did not reach the second governmental-presumption analysis (that government entities may be presumed to represent the interests assigned to them by law) because the first presumption sufficed to defeat intervention as of right.

2) Permissive intervention (Rule 24(b))

Even if a would-be intervenor meets Rule 24(b)’s threshold—timeliness and a common question of law or fact—the district court retains “wholly discretionary” power to deny intervention. In the Fifth Circuit, reversal of such denials is “almost unique.”

The district court recognized API’s claim of a unique perspective but found that adding API as a party would burden the litigation and that API could effectively present its views as amicus curiae. Citing Richardson v. Flores, the Fifth Circuit affirmed, reiterating that when the goal is to be “heard” with a “unique view,” the proper mechanism is an amicus brief, not intervention.

Impact

The ruling carries practical and doctrinal consequences for administrative and procedural law, particularly in challenges to federal rules.

Higher bar for industry intervention on the government’s side absent concrete divergence. Trade associations defending agency rules must do more than assert differing “private vs. public” interests or point to potential future policy shifts. They need to:
- Identify present litigation positions, evidence, or remedies the agency will not pursue;
- Show agency conduct indicating narrowed defenses, collusion, or nonfeasance;
- File distinct pleadings reflecting genuinely different arguments or relief.
Secretarial or policy reconsideration orders are not, by themselves, adversity. Agencies routinely reassess rules. This opinion declares that speculative shifts do not rebut adequate representation when the agency is still actively defending the challenged rule. Parties seeking intervention must wait for or demonstrate concrete changes—e.g., concession of error, refusal to appeal, or a public limitation on defenses.
Amicus as the preferred “safety valve.” District courts enjoy wide latitude to direct would-be intervenors to participate as amici when they profess a unique perspective. This channels input without complicating case management, and the Fifth Circuit’s reliance on Flores reaffirms that practice.
Reinforcement of Fifth Circuit’s two-presumption approach. The court again gives “teeth” to adequate representation when the proposed intervenor shares an ultimate objective with an existing party—especially a government party. This keeps party alignments lean and reduces duplicative defenses.
Practice pointer on local rules. Although the Fifth Circuit did not affirm on procedural grounds, it flagged the Western District of Louisiana’s local rule requiring that a proposed pleading be attached to a motion to intervene. Future intervenors should comply scrupulously; failure can independently sink intervention in district court.
OCS decommissioning litigation will remain primarily a state–industry–agency contest. On the merits of BOEM’s financial assurance regime, this ruling keeps API off the caption (for now) and underscores that industry’s most reliable voice may be as amicus unless or until the agency’s litigation stance materially diverges.

Complex Concepts Simplified

Financial assurance for decommissioning: Offshore oil and gas lessees must eventually plug wells and dismantle platforms. “Financial assurance” (often a bond or other security) is a guarantee that funds will be available to pay for that work, protecting the public from abandoned infrastructure and cleanup costs.
BOEM’s Rule: The April 24, 2024 rule clarifies when BOEM may require supplemental financial assurance from current lessees on the Outer Continental Shelf. Notably, it does not consider prior lessees’ existence or financial strength as factors when deciding whether to demand supplemental security from current lessees.
Rule 24(a)(2) intervention as of right: A nonparty may intervene if it has a protectable interest that could be impaired by the case’s disposition and if existing parties do not adequately represent that interest. When the would-be intervenor shares the same ultimate objective as an existing party, a presumption of adequate representation applies.
“Adversity of interest”: To overcome the presumption, the intervenor must show a present, case-specific divergence—e.g., the existing party refuses to make certain arguments, declines to seek certain remedies, or otherwise limits its defense in a way that matters to the intervenor’s interests.
Mere possibility is not enough: Courts will not find inadequate representation based on hypothetical or future divergence (for instance, an anticipated policy change). Concrete evidence is required.
Permissive intervention (Rule 24(b)) vs. amicus curiae: Even if the case shares common questions with a proposed intervenor’s defenses, courts may deny intervention to avoid burden and duplication. Often, the court will invite an amicus brief instead, which allows participation without full-party obligations and complexities.
Standards of review: Denials of intervention as of right are reviewed de novo; denials of permissive intervention are reviewed for abuse of discretion—an extremely deferential standard rarely yielding reversal.
“Pretermit” and “summary calendar”: To “pretermit” an issue is to pass it by as unnecessary to decide. A “summary calendar” disposition is an expedited case resolved without oral argument; it is still a considered decision of the court.

Conclusion

State of Louisiana v. Burgum crystallizes a pragmatic rule of intervention in the Fifth Circuit: when a private party seeks to defend a federal rule alongside the agency that promulgated it, shared objectives trigger a presumption of adequate representation that cannot be overcome by conjecture about future policy shifts. The court reads Trbovich and Sierra Club v. Espy narrowly, demanding concrete evidence of divergence—distinct arguments, remedies, or agency actions limiting the defense—before admitting additional parties. Meanwhile, district courts retain broad discretion to manage their dockets by steering unique perspectives into amicus briefs rather than expanding the roster of parties.

For regulated industries, the message is clear: to intervene as of right on the government’s side, come with specifics showing present adversity, not just the possibility of change. For courts and agencies, the decision promotes streamlined litigation and reduces duplicative defenses while preserving a channel—amicus participation—for meaningful contributions from affected stakeholders. In the ongoing fights over offshore decommissioning policy and beyond, this opinion will serve as a touchstone for Rule 24 practice in the Fifth Circuit.