In a dissent, Judge Carlos Bea concluded that the "capable of repetition, yet evading review" exception applied to WCSPA's appeal, and thus that the court should have addressed the merits of the case.
Judge Bea first explained that WCSPA's appeal fell within the "capable of repetition, yet evading review" exception because the impetus for WCSPA's attempted intervention was NRDC's challenge to the 2009-2010 Specifications.
Citing Supreme Court precedent, (388) Judge Bea next stated that the appropriate analysis is whether WCSPA's appeal is merely capable of repetition--not whether the controversy is likely to recur, as the majority argued--and he concluded that it was.
Judge Bea next reviewed the magistrate's conclusion that granting WCSPA's motion might prejudice the other parties.
Finally, Judge Bea considered the reason for WCSPA's "delay." He reiterated his belief that WCSPA had not truly delayed: WCSPA waited until 2010 to intervene because the 2009-2010 Specifications were not challenged until NRDC's fifth amended complaint.