LA Env Actn Ntwrk v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 1999 Decided March 26, 1999

No. 98-1082

Louisiana Environmental Action Network and

Environmental Technology Council, Inc.,

Petitioners

v.

United States Environmental Protection Agency,

Respondent

American Petroleum Institute, et al.,

Intervenors

On Petition for Review of an Order of the

Environmental Protection Agency

David R. Case argued the cause for petitioners. With him

on the briefs was David J. Lennett.

Mary F. Edgar, Attorney, U.S. Department of Justice,

argued the cause for respondent. With her on the brief were

Lois J. Schiffer, Assistant Attorney General, and Steven

Silverman, Attorney, U.S. Environmental Protection Agency.

William R. Weissman argued the cause for intervenor

Edison Electric Institute, et al. With him on the brief were

Steven J. Groseclose, George W. Frick, Ralph J. Colleli,

David F. Zoll and Ronald A. Shipley.

Before: Williams, Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Opinion by Circuit Judge Sentelle, concurring in part and

dissenting in part.

Williams, Circuit Judge: Section 3004(m) of the Resource

Conservation and Recovery Act ("RCRA"), 42 U.S.C.

s 6924(m), requires the Environmental Protection Agency to

promulgate regulations governing what treatment certain

kinds of hazardous waste must undergo before it may be

disposed of in a landfill. EPA found that waste already in a

landfill presented a special problem. The agency's authority

to compel high-quality disposition of such waste is not as

great as it is for as yet undisposed of waste. As a result, too-

strict treatment regulations could in some circumstances dis-

courage excavation--and thus prevent any treatment at all.

Because of its concern for this, EPA promulgated a regula-

tion under s 3004(m) allowing variances from generally appli-

cable treatment standards if "treatment to the specified level

or by the specified method is environmentally inappropriate

because it would likely discourage aggressive remediation."

62 Fed. Reg. 64,509/3 (1997). Petitioners Louisiana Environ-

mental Action Network ("LEAN") and Environmental Tech-

nology Council ("ETC") petitioned for review of this new

variance rule; we deny the petition to the extent it is ripe.

* * *

Standing first. Petitioners defend only the standing of

LEAN; despite its participation in oral argument and evident

interest in the case, ETC (a waste treatment company trade

association formerly known as the Hazardous Waste Treat-

ment Council) appears to lack prudential standing. See, e.g.,

Hazardous Waste Treatment Council v. Thomas, 885 F.2d

918, 925 (D.C. Cir. 1989) ("HWTC IV") (because of concern

that "judicial intervention may defeat statutory goals if it

proceeds at the behest of interests that coincide only acciden-

tally with those goals," firms selling environmental services

lack standing to challenge RCRA regulations as insufficiently

stringent); Hazardous Waste Treatment Council v. EPA

("HWTC II"), 861 F.2d 277, 283 (D.C. Cir. 1988) (same).

LEAN, by contrast, evidently an organization of environmen-

tally concerned citizens and groups, clearly meets prudential

standing requirements. It rests its claim of "injury in fact"

(essential for constitutional standing) on the interests of at

least three members who live near the Carlyss landfill in

Louisiana. This is the site at which most waste from that

state would be "land disposed" if excavated and treated.

Under LEAN's theory, "lower quality" (less treated) wastes

will be deposited in Carlyss; the rule in literal terms permits

that effect, and holders of hazardous waste have every incen-

tive to take advantage of it. Under EPA's theory the new

rule will increase the quantity of waste disposed of at Carlyss,

for it adopted the rule lest holders of hazardous waste who

were free to choose would forego costly excavation and redis-

posal (with the likely destination, in Louisiana, of Carlyss) in

favor of thriftier in-place solutions. Either way, application

of the variance rule will lower the average quality of waste

deposited at Carlyss, and under EPA's view its application

will also increase the quantity of such waste. Thus, to the

extent that there is any residual risk in the lower-quality

wastes, application of the rule will increase the risk of harm

to LEAN members living near Carlyss.

While our partially dissenting colleague doubts that such

harm is sufficiently imminent, we do not. Petitioners have

noted that in the state of Louisiana there are over 100

inactive or abandoned hazardous waste sites for which clean-

up has already been found necessary, as well as about thirty

RCRA facilities designated "high priority." It is therefore all

but certain that remediation activities will continue to occur

apace. Even if the variance-to-remediation ratio is fairly low,

the amount of such activities creates a very "substantial

probability" that some variances will be granted, increasing

risk to LEAN members near the Carlyss site. See Florida

Audubon Society v. Bentsen, 94 F.3d 658, 666 (D.C. Cir.

1996).

What is novel here is that LEAN must surely have (indeed,

counsel at oral argument confirmed that it did have) other

members who live nearer to the landfills in which waste

currently resides--waste that would, absent the waiver rule's

preference for excavation, treatment and redisposal, remain

in place and continue to entail some risk for these LEAN

members. Indeed, as the waiver rule is aimed at "cases

where imposition of the otherwise applicable treatment stan-

dard could result in a net environmental detriment by dis-

couraging aggressive remediation," 62 Fed. Reg. 64,505/3

(1997) (emphasis added), these other members might well be

harmed more by continuation of the status quo than those

living near the Carlyss landfill are benefited.1

We have previously held that such a conflict of interest

within an organization does not deprive the organization of

representative standing if no internal procedural violation has

been shown. National Maritime Union v. Commander,

Military Sealift Command, 824 F.2d 1228, 1232-34 (D.C. Cir.

1987). But see Retired Chicago Police Ass'n v. City of

Chicago, 76 F.3d 856, 864-65 (7th Cir. 1996) (as burden to

show standing is on plaintiff, plaintiff organization must dem-

onstrate proper authorization of litigation if profound conflict

of interest is present). Conceivably one might distinguish

National Maritime Union on the ground that here we have

an entity on the scene, ETC, with very real economic inter-

ests but no standing. The risk of some possible manipulation

__________

1 LEAN claims that it does not oppose EPA's decision to grant

variances on the ground that the baseline requirement is so strin-

gent as to discourage aggressive remediation (e.g. excavation). But

it does object to EPA's consideration of this excessive-stringency

possibility in actually determining the content of a variance. Thus

the outcome it seeks would likely be very similar to the status quo

ante rule, i.e., standards that inhibit remediation.

will occur even to the most naive. Nevertheless, because of

the line-drawing difficulties that any such distinction would

generate, we believe that in the absence of any overt signal

that LEAN's decision to challenge the rule is the product of

ETC's influence, National Maritime Union should control.

As LEAN's primary purpose is likely to protect the overall

health of Louisiana's environment, one might question the

organization's standing on germaneness grounds. See Hunt

v. Washington State Apple Advertising Comm'n, 432 U.S.

333, 343 (1977) ("the interests [the organization] seeks to

protect [must be] germane to the organization's purpose").

But by LEAN's own description, "LEAN's purpose is to

protect Louisiana's air, land, water, and other natural re-

sources, and to protect LEAN's members and other citizens of

the state, from threats posed by pollution." Petitioners'

Certificate as to Parties (emphasis added). Indeed, we see no

reason to believe that LEAN's purposes are exclusively

other-regarding. All non-trivial policy issues entail trade-

offs, and LEAN may legitimately object to decisions that

injure its members' environmental interests, no matter what

the overall calculus. That being the case, National Maritime

Union controls this issue as well. Organizations, like people,

may face the problem of "two souls in one breast," but--as

long as they do not violate internal procedures--they are free

to choose for themselves which purpose to pursue on any

specific occasion. That LEAN may act against its other-

regarding purposes is no more a bar to standing than that it

acts against the self-interest of some of its own members.

* * *

Section 3004(m)(1) provides, in relevant part, that

the Administrator shall ... promulgate regulations spec-

ifying those levels or methods of treatment, if any, which

substantially diminish the toxicity of the waste or sub-

stantially reduce the likelihood of migration of hazardous

constituents from the waste so that short-term and long-

term threats to human health and the environment are

minimized.

42 U.S.C. s 6924(m)(1).

In the preamble to its new variance rule, EPA stated that

in considering whether a particular variance complies with

this language, it may consider "the risks posed by the contin-

uation of any existing land disposal of the untreated waste,

that is, the risks posed by leaving previously land disposed

waste in place." 62 Fed. Reg. 64,506/2 (1997). Further, in an

apparent illustration of specific factors it might look to in

selecting the right level for a specific variance, EPA men-

tioned "disposal of treatment residues in a subtitle C land-

fill"--that is, a landfill subject to the hazardous waste dispos-

al controls of RCRA s 3004 et seq. Id. LEAN argues that

both considerations are improper under the statute.

Whether EPA's words qualify as a "regulation" under

RCRA's judicial review provision, 42 U.S.C. s 6976(a)(1) (pro-

viding review within 90 days of action promulgating "regula-

tion"), depends on three factors: EPA's own characterization,

whether it published the language in the Federal Register or

the Code of Federal Regulations, and whether the action has

binding effect on either private parties or EPA. See Florida

Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir.

1998). (The first two factors are, of course, the best indica-

tion of the third.) The EPA argues that this is a reviewable

"regulation" and has published the contested material in the

Federal Register, and we see nothing in the actual language

that would indicate that it intended something less than an

official, binding interpretation of the statute.

LEAN's challenge must also satisfy ripeness requirements.

But as Congress has provided immediate review of RCRA

regulations, see 42 U.S.C. s 6976(a)(1), we need only find that

the issue is fit for judicial review. See George E. Warren

Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998) ("Where the

[fitness] prong of the Abbott Laboratories ripeness test is met

and Congress has emphatically declared a preference for

immediate review ... no purpose is served by proceeding to

the [hardship] prong."). Fitness for judicial review is based

on "whether the issue is purely legal, whether consideration

of the issue would benefit from a more concrete setting, and

whether the agency's action is sufficiently final." Id. at 621.

With respect to these first questions--whether the statute

entirely bars EPA from consideration of certain factors--all

three criteria indicate fitness for review and, accordingly,

ripeness.

On the merits: in the words of Chevron, "the statute is

silent or ambiguous with respect to the specific issue" of

whether the "threats" to be "minimized" under s 3004(m)

may include the threat posed by leaving waste where it

currently is. Chevron v. NRDC, 467 U.S. 837, 843 (1984).

LEAN's argument here appears to be that because s 3004(m)

only regulates waste to be disposed of in new landfill sites (a

point that is not disputed), it follows that the only "threats" to

be considered and "minimized" are threats from waste in such

a new site. This appears a complete non sequitur. It seems

far more natural to suppose that in a statute enacted to

protect human health and the environment, Congress intend-

ed to direct EPA to keep its eye on this underlying goal,

rather than to use purely artificial benchmarks for inquiring

whether threats are truly "minimized." Not only does the

statute not resolve the specific issue contrary to EPA's

resolution, but the latter is plainly reasonable in light of the

statutory language and structure.

We also find that Congress has not barred EPA, in its

determination whether the "minimize[ ]" language is satisfied,

from considering the protective effect of eventual disposal in

a subtitle C landfill. LEAN's argument to the contrary

depends on our decision in American Petroleum Institute v.

EPA, 906 F.2d 729, 735-36 (D.C. Cir. 1990) ("API"). LEAN

evidently reads this case to foreclose EPA from considering

in any way the protective characteristics of the waste's place

of ultimate deposit. But API held only that, because land

disposal pursuant to s 3004(m)(2) is dependent upon compli-

ance with the s 3004(m)(1) treatment requirement, land dis-

posal itself cannot constitute the "treatment" required to

satisfy s 3004(m)(1). Id. Thus, API makes clear that in

measuring whether the "treatment" required will "substan-

tially diminish" toxicity or "substantially reduce" the likeli-

hood of migration, EPA must look to the (pre-disposal)

treatment. EPA does not dispute this, even in the variance

context. But as to whether EPA may look more broadly in

determining if the overall effect is to "minimize[ ]" threats,

API says nothing. Although LEAN points to another, later

rulemaking in which EPA appears to have read the mandate

of API more broadly, see 63 Fed. Reg. 28,607/3 (1998), a

possible later error is no basis for us to upset the present

rule.

Nor do we find EPA's interpretation here unreasonable in

light of the statute's language and structure. It would be

senseless to make EPA, in attempting to protect human

health and the environment, ignore the eventual disposal

site's likely effect: such a restriction would deprive EPA of

any basis from which to estimate the actual risk likely to be

imposed on the outside world.

We thus reject these challenges on the merits.

* * *

LEAN appears to make two additional challenges. It first

claims that something in the present rule violates the "sub-

stantially diminish ... substantially reduce" language of

s 3004(m)(1). But, apart from LEAN's claims as to what the

statute categorically excludes from consideration in assessing

the "minimiz[ation]" required by the section, the issue of

whether a particular treatment brings about substantial dimi-

nution or reduction--although concededly a restriction on

whatever treatment is approved--cannot be decided without

particular challenged treatments before us. Accordingly, we

find the issue unfit for judicial review at this time.

LEAN next argues that EPA's risk calculations will be

unfairly compromised by its improper refusal to exercise its

power to force excavations of hazardous waste. But when

prompted at oral argument, counsel for petitioners was un-

able to point to any language indicating EPA's intention to do

such a thing, and counsel for EPA denied any such intent.

We see no ripe case or controversy here.

We dismiss these unripe challenges.

* * *

We find no reason to disturb EPA's decision. We dismiss

the petition in part and deny the remainder.

So ordered.

Sentelle, Circuit Judge, concurring in part and dissent-

ing in part: I wholly concur in the portion of my colleagues'

opinion and judgment that dismisses the diminution or reduc-

tion and risk calculation claims of Louisiana Environmental

Action Network as unripe. As to the portion of the opinion

denying the remainder of the petition, I do not disagree with

their view of the merits; I simply do not think we can

properly reach the merits at all. I am not at all convinced

that petitioners have carried their burden of establishing that

they have standing to challenge the RCRA regulations.

In order to satisfy the "essential and unchanging" standing

predicate to any exercise of the jurisdiction of an Article III

court, a litigant must establish the "irreducible constitutional

minimum of standing," by demonstrating that it has suffered

a "concrete and particularized" injury that is (1) "actual or

imminent," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992), (2) caused by or fairly traceable to an action that the

litigant challenges in the litigation, see Allen v. Wright, 468

U.S. 737, 752 (1984), and (3) redressable by the court in the

action, see Simon v. Eastern Ky. Welfare Rights Org., 426

U.S. 38 (1976). We require a plaintiff or petitioner to show

that the injury is current, or "at least imminent" in order to

avoid the possibility that the court may be "unconstitutionally

render[ing] an advisory opinion by 'deciding a case in which

no injury would have occurred at all.' " Florida Audubon

Soc'y v. Bensen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting

Defenders of Wildlife, 504 U.S. at 564 n.2). A speculation of

harm is not sufficient to demonstrate the concrete, particular-

ized injury necessary for constitutional standing. Simon, 426

U.S. at 44 ("[U]nadorned speculation will not suffice to invoke

the federal judicial power.").

That the current injury is speculative is demonstrated by

the very terms in which it is expressed. As the majority

describes the injury, the most that LEAN has demonstrated

is that three of its members live near a site "at which most

waste from [Louisiana] would be 'land disposed' if excavated

and treated." Maj. op. at 3. The majority relies solely on

the fact that there are approximately 100 sites in Louisiana

for which cleanup has been found necessary as grounds for

concluding that it is "all but certain that remediation activities

will continue to occur apace." Id. From this conclusion, the

majority opines that "[e]ven if the variance-to-remediation

ratio is fairly low, the amount of such activities creates a very

'substantial probability' that some variances will be granted."

Id. at 3-4. However, neither the majority, nor anyone else,

can say whether the variance-to-remediation level will be

high, low, or even zero. The majority correctly concludes

that the record evidence indicates that there is a "substantial

probability" that remediation will occur in the future at sites

in Louisiana. However, it improperly leaps from this well-

supported proposition to the wholly unsupported conclusion

that, as part of any future remediation at sites in Louisiana,

"some variances will be granted," adversely affecting the

interests of the named LEAN members. Assent to this

latter proposition requires a grand leap of faith since we can

only speculate concerning whether EPA will grant variances

for sites in Louisiana. Indeed, there is no record evidence

indicating that any of the sites referenced by the majority

would be suitable candidates for variances under EPA's new

program, since EPA has not yet acted to grant or deny a

single variance. For these reasons, I can only conclude that

petitioners' alleged injury is speculative at best.

The purely speculative variety of failed standing occurs

most frequently where, as here, petitioners are attacking an

action of an agency or other entity which they contend is

likely to encourage some third party not before the court to

take some action which would be detrimental to plaintiffs and

might possibly occur if that third party acts upon the encour-

agement. The Supreme Court has discussed this proposition

in a number of decisions, including Warth v. Seldin, 422 U.S.

490 (1975). In Warth, the Court opined that in litigation

challenging the governmental regulation of one party on the

basis that it causes harm to a third party, "the indirectness of

the injury does not necessarily deprive the person harmed of

standing to vindicate his rights. But, it may make it substan-

tially more difficult to meet the minimum requirement of

article III: to establish that, in fact, the asserted injury was

the consequence of the defendants' actions or that prospective

relief will remove the harm." Id. at 505. All the more

difficult where, as here, it is speculative that the harm will

occur at all. In Florida Audubon Society v. Bensen, 94 F.3d

658 (D.C. Cir. 1996), we held that plaintiffs had not demon-

strated standing where they had not shown that it was

substantially probable that the promulgation of the alleged

incentive toward the third party would cause the speculated

injury. Here there is no such showing and no standing.

In short, I would hold that plaintiffs have not demonstrated

that they meet the constitutional minimum of a concrete,

particularized injury or that any such injury is caused by the

acts of a defendant of which they complain. Instead of

denying the petition, I would dismiss it.