Sierra Club v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2002 Decided June 18, 2002

No. 01-1057

Sierra Club and Environmental Technology Council, Inc.,

Petitioners

v.

Environmental Protection Agency,

Respondent

American Chemistry Council, et al.,

Intervenors

On Petition for Review of a Rule of the

Environmental Protection Agency

David R. Case argued the cause and filed the briefs for

petitioners.

G. Scott Williams, Attorney, U.S. Department of Justice,

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

John C. Cruden, Deputy Assistant Attorney General, and

Alan Carpien, Attorney, U.S. Environmental Protection

Agency.

David F. Zoll, Leslie A. Hulse, G. William Frick, Ralph J.

Colleli, Douglas H. Green and Steven J. Groseclose were on

the brief for intervenors.

Before: Ginsburg, Chief Judge, Randolph and Tatel,

Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: The Environmental Protection

Agency promulgated a rule to establish the conditions under

which it would consider certain wastewater treatment sludges

"hazardous" within the meaning of the Resource Conserva-

tion and Recovery Act, 42 U.S.C. s 6901 et seq. See Hazard-

ous Waste Mgmt. Sys., 65 Fed. Reg. 67068 (Nov. 8, 2000)

(Chlorinated Aliphatics Rule). The Sierra Club and the

Environmental Technology Council challenge the rule as un-

reasonable and as inconsistent with the plain meaning of the

RCRA. Because neither of the petitioners has standing to

seek review, we dismiss their petition.

I. Background

The RCRA establishes a comprehensive regulatory frame-

work for the handling and disposal of "solid waste," including

"any garbage, refuse, [or] sludge from a waste treatment

plant." 42 U.S.C. s 6903(27). The Act further defines as

"hazardous waste" the subset of solid waste that (for specified

reasons) may

(A) cause, or significantly contribute to an increase in

mortality or an increase in serious irreversible, or

incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to

human health or the environment when improperly

treated, stored, transported, or disposed of, or other-

wise managed.

Id. s 6903(5). Subtitle C of the RCRA, 42 U.S.C. ss 6921-

34, establishes "a stringent 'cradle-to-grave' regulatory struc-

ture overseeing the safe treatment, storage and disposal of

hazardous waste." Military Toxics Project v. EPA, 146 F.3d

948, 950 (D.C. Cir. 1998). Solid waste that is not deemed

hazardous is "regulated much more loosely" under subtitle D

of the Act, 42 U.S.C. ss 6941-49. City of Chicago v. EDF,

511 U.S. 328, 331 (1994).

Under the Agency's established criteria "for identifying the

characteristics of hazardous waste," 42 U.S.C. s 6921(a), a

waste is "listed" as hazardous if it: (1) "exhibits any of the

characteristics of hazardous waste"; (2) "has been found to be

fatal to humans [or, if data for humans are not available, then

to rats] in low doses"; or (3) contains a substance the

Congress has designated a "toxic constituent" capable of

causing harm when improperly managed or stored. 40

C.F.R. ss 261.11(a)(1-3). The last criterion entails a risk

assessment in order to determine whether the constituent is

in fact "capable of posing a substantial present or potential

hazard to human health or the environment." Id.

s 261.11(a)(3).

In 1984 the Congress directed the EPA to determine

whether the byproducts of chlorinated aliphatics should be

listed as hazardous pursuant to the Agency's criteria. See 42

U.S.C. s 6921(e)(2). The EPA found that the production of

certain chlorinated aliphatics, including ethylene dichloride

and vinyl chloride monomer (EDC/VCM), generates a waste-

water treatment sludge containing two "toxic constituents,"

arsenic and dioxin, in amounts that could endanger the public

health if managed or disposed of improperly. See Chlorinat-

ed Aliphatics Rule, 65 Fed. Reg. at 67072/1, 67089. The

Agency concluded that although the sludge "posed a substan-

tial hazard to human health and the environment when man-

aged in a land treatment unit, [it] did not pose this hazard

when managed in a landfill." Id. at 67097/1.

Having determined that EDC/VCM sludge threatens hu-

man health and the environment under certain conditions, the

EPA "conditionally listed" the sludge as a hazardous waste.

See id. at 67088/3. More specifically, the Agency determined

that the wastewater sludges generated during the production

of EDC/VCM are hazardous, and therefore must be handled

in accordance with subtitle C of the RCRA, unless:

(i) they are disposed of in a subtitle C or non-hazardous

landfill licensed or permitted by the state or federal

government;

(ii) they are not otherwise placed on the land prior to

final disposal; and

(iii) the generator maintains documentation demonstrat-

ing that the waste was either disposed of in an on-

site landfill or consigned to a transporter or disposal

facility that provided a written commitment to dis-

pose of the waste in an off-site landfill.

Id. at 67088-89.

There are fourteen facilities, all located in Louisiana and

Texas, that generate EDC/VCM sludge. Ten of the facilities

send their sludge to landfills for disposal; two treat the

sludge on site -- that is, they attempt to detoxify it and

recycle its components -- and two dispose of it as required by

subtitle C. The rule under review, therefore, requires only the

two facilities that presently treat their sludge to change their

method of storing and disposing of the substance, either by

placing it in a landfill or by complying with the stringent

directives of subtitle C.

The Sierra Club and the Environmental Technology Coun-

cil -- formerly known as the Hazardous Waste Treatment

Council -- petitioned for review of the Rule. The American

Chemistry Council, the American Petroleum Institute, the

Utility Solid Waste Activities Group, the Edison Electric

Institute, the American Public Power Association, the Nation-

al Rural Electric Cooperative Association, and the American

Gas Association have intervened to defend the Rule.

II. Standing

The Sierra Club and the ETC argue that the conditional

listing of EDC/VCM sludge cannot be squared with the land

disposal restrictions in the Act; the Chlorinated Aliphatics

Rule is based upon an untenable interpretation of the RCRA;

and the Rule is arbitrary and capricious in substance. The

EPA and the intervenors respond first by arguing that the

court does not have jurisdiction over the petition because the

Sierra Club and the ETC respectively lack constitutional and

prudential standing. We consider the standing issues, mind-

ful of our independent obligation to be sure of our jurisdic-

tion. See High Plains Wireless, L.P. v. FCC, 276 F.3d 599,

607 (D.C. Cir. 2002).

A. The Sierra Club

Under Article III of the Constitution of the United States,

an association, such as the Sierra Club, has standing to sue on

behalf of its members only if (1) at least one of its members

would have standing to sue in his own right, (2) the interests

the association seeks to protect are germane to its purpose,

and (3) neither the claim asserted nor the relief requested

requires that an individual member of the association partici-

pate in the lawsuit. See Hunt v. Washington State Apple

Advertising Comm'n, 432 U.S. 333, 342-43 (1977). The EPA

and the intervenors do not argue, nor do we have any reason

to believe, that the Sierra Club fails to satisfy the latter two

requirements.

The issue before the court, then, is whether at least one

member of the Sierra Club has standing under Article III.

The "irreducible constitutional minimum of standing contains

three elements": (1) injury-in-fact, (2) causation, and (3)

redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). For the first element, the Sierra Club must show

"that EPA's alleged failings have caused a traceable 'concrete

and particularized' harm to their members that is 'actual or

imminent.' " American Petroleum Inst. v. EPA, 216 F.3d 50,

63 (D.C. Cir. 2000) (quoting Louisiana Envtl. Action Network

v. EPA, 172 F.3d 65, 71 (D.C. Cir. 1999) (LEAN)) The

organization need not prove the merits of its case -- "i.e.,

that localized harm has in fact resulted from a federal rule-

making" -- in order to establish its standing, but it "must

demonstrate that there is a 'substantial probability' that local

conditions will be adversely affected" and thereby injure a

member of the organization. Id. (quoting LEAN, 172 F.3d at

68).

In reply to the suggestion in the EPA's brief that it does

not have standing, the Sierra Club duly avers that some of its

members "live, work, and recreate in communities adversely

affected by the chemical plants that produce, store, and

transport the EDC/VCM sludge, as well as [by] the on-site

and off-site landfills used for sludge disposal," and it claims

that "there is a substantial probability that improper manage-

ment and disposal of EDC/VCM sludge will cause harm" to

its members in the vicinity of those facilities and landfills.

Bare allegations are insufficient, however, to establish a

petitioner's standing to seek judicial review of administrative

action.

As the Supreme Court explained in Defenders of Wildlife,

the burden of production a plaintiff must bear in order to

show it has standing to invoke the jurisdiction of the district

court varies with the procedural context of the case. At the

pleading stage, "general factual allegations of injury resulting

from the defendant's conduct may suffice," and the court

"presum[es] that general allegations embrace the specific

facts that are necessary to support the claim." Defenders of

Wildlife, 504 U.S. at 561. On a motion for summary judg-

ment, however, "the plaintiff can no longer rest on such 'mere

allegations,' but must 'set forth' by affidavit or other evidence

'specific facts,' ... which for purposes of the summary judg-

ment motion will be taken to be true." Id. (quoting Fed. R.

Civ. P. 56(e)). Although the Supreme Court did not address

directly the burden of production to be borne by a petitioner,

such as the Sierra Club in this case, seeking review of

administrative action in the court of appeals, the implication

of its teachings is clear.

In such cases, the agency that issued the order under

review ordinarily will have compiled an evidentiary record,

and the petitioner ordinarily will have participated in the

proceedings before the agency. "An administrative agency

... is not subject to Article III of the Constitution of the

United States," however, Pfizer, Inc. v. Shalala, 182 F.3d 975,

980 (D.C. Cir. 1999), so the petitioner would have had no need

to establish its standing to participate in the proceedings

before the agency. When the petitioner later seeks judicial

review, the constitutional requirement that it have standing

kicks in, and that requirement is the same, of course, as it

would be if such review were conducted in the first instance

by the district court. Compare U.S. Airwaves, Inc. v. FCC,

232 F.2d 227, 231-32 (D.C. Cir. 2000) (applying elements of

standing as set out in Defenders of Wildlife), with, e.g., Giles

v. Ashcroft, 193 F. Supp.2d 258, 263 (D.D.C. 2002) (same). In

either forum, therefore, the petitioner must substantiate its

standing "with the manner and degree of evidence required at

the successive stages of the litigation." Defenders of Wildlife,

504 U.S. at 561.

In contrast to the plaintiff in a case that has not yet

progressed beyond the pleading stage in the district court --

at which stage the court " 'presum[es] that general allegations

embrace those specific facts that are necessary to support the

claim,' " id. (quoting Lujan v. National Wildlife Fed., 497

U.S. 871, 889 (1990)) -- a petitioner seeking review in the

court of appeals does not ask the court merely to assess the

sufficiency of its legal theory. Rather, like a plaintiff moving

the district court for summary judgment, the petitioner is

asking the court of appeals for a final judgment on the merits,

based upon the application of its legal theory to facts estab-

lished by evidence in the record. Consistent with Defenders

of Wildlife, therefore, the petitioner must either identify in

that record evidence sufficient to support its standing to seek

review or, if there is none because standing was not an issue

before the agency, submit additional evidence to the court of

appeals. See Amfac Resorts, L.L.C. v. DOI, 282 F.3d 818, 830

(D.C. Cir. 2002) ("[The petitioners] are not confined to the

administrative record. ...Beyond the pleading stage, they

must support their claim of injury with evidence").

The petitioner's burden of production in the court of ap-

peals is accordingly the same as that of a plaintiff moving for

summary judgment in the district court: it must support each

element of its claim to standing "by affidavit or other evi-

dence." Defenders of Wildlife, 504 U.S. at 561. Its burden of

proof is to show a "substantial probability" that it has been

injured, that the defendant caused its injury, and that the

court could redress that injury. American Petroleum, 216

F.3d at 63.

In many if not most cases the petitioner's standing to seek

review of administrative action is self-evident; no evidence

outside the administrative record is necessary for the court to

be sure of it. In particular, if the complainant is "an object of

the action (or forgone action) at issue" -- as is the case

usually in review of a rulemaking and nearly always in review

of an adjudication -- there should be "little question that the

action or inaction has caused him injury, and that a judgment

preventing or requiring the action will redress it." Defenders

of Wildlife, 504 U.S. at 561-62. When the petitioner's stand-

ing is not self-evident, however, the petitioner must supple-

ment the record to the extent necessary to explain and

substantiate its entitlement to judicial review.

The Sierra Club protests in vain that it bears not this

burden, observing first that "no Federal rule of appellate

procedure, or of this circuit ... requires parties to demon-

strate standing through affidavits," and second that the court

has "long accepted parties' allegations of standing made by

counsel in briefs." The first observation is correct but una-

vailing in the face of the Supreme Court's teaching that the

burden of production for standing is correlative to the burden

of production for the substantive elements of the litigant's

case at the successive stages of litigation. The second obser-

vation, though supported by citations to two of our cases, still

is of no help to the petitioner. The court was not impelled in

those cases to call upon the petitioners to produce such

evidence because the petitioners' standing was clear, see

Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246, 1259

(D.C. Cir. 1994) ("environmental organizations [whose mem-

bers live in affected areas] clearly do have standing"); accord

Sierra Club v. EPA, 129 F.3d 137, 139 (D.C. Cir. 1997); those

precedents do not relieve the Sierra Club of its duty to

answer the call in this case. The Sierra Club well knows as

much: after the EPA questioned the Sierra Club's standing

in its responsive brief, the Club in its reply brief, citing

another pair of this court's decisions, sought specifically "an

opportunity to submit post-argument affidavits further dem-

onstrating [its] standing," which request the court granted.

Absent good cause shown, however, a litigant should not

expect the court to follow that procedure again; experience

teaches that full development of the arguments for and

against standing requires the same tried and true adversarial

procedure we use for the presentation of arguments on the

merits. Cf. Grant v. United States Air Force, 197 F.3d 539,

543 n.6 (D.C. Cir. 1999) ("our caselaw makes clear that an

argument first made in the reply comes too late"). Hence-

forth, therefore, a petitioner whose standing is not self-

evident should establish its standing by the submission of its

arguments and any affidavits or other evidence appurtenant

thereto at the first appropriate point in the review proceed-

ing. In some cases that will be in response to a motion to

dismiss for want of standing; in cases in which no such

motion has been made, it will be with the petitioner's opening

brief--and not, as in this case, in reply to the brief of the

respondent agency.* In either procedural context the peti-

tioner may carry its burden of production by citing any

record evidence relevant to its claim of standing and, if

necessary, appending to its filing additional affidavits or other

evidence sufficient to support its claim. In its opening brief,

the petitioner should also include in the "Jurisdictional State-

ment" a concise recitation of the basis upon which it claims

standing.

Requiring the petitioner to establish its standing at the

outset of its case is the most fair and orderly process by

which to determine whether the petitioner has standing to

invoke the jurisdiction of the court. The facts upon which a

petitioner relies for its standing to sue are necessarily pecu-

liar to it and are ordinarily within its possession; indeed it is

__________

* The Sierra Club appears already to have recognized the virtue

in establishing its standing at the outset of a case. In Sierra Club

v. EPA, Nos. 01-1070 & 01-1158 (D.C. Cir. filed Feb. 14, 2001),

which was filed in this court eight days after the instant petition,

the Sierra Club appended to its opening brief the declarations of

two members and one employee in order to provide facts sufficient

to support the Club's standing to sue. The EPA found no cause to

question the petitioner's standing, and the litigants focused their

attention instead upon the merits of the case.

often the case, as here, that some of the relevant facts are

known only to the petitioner, to the exclusion of both the

respondent and the court. Yet all too often the petitioner

does not submit evidence of those facts with its opening brief

and the respondent is therefore left to flail at the unknown in

an attempt to prove the negative, see, e.g., D&F Afonso

Realty Trust v. Garvey, 216 F.3d 1191, 1194 (D.C. Cir. 2000)

(agency challenged standing, which challenge petitioner readi-

ly overcame when "afforded ... the opportunity [after oral

argument] to submit affidavits supporting its allegations");

Chlorine Chem. Council v. EPA, 206 F.3d 1286, 1289 (D.C.

Cir. 2000) (agency that had challenged standing later "con-

cede[d] that 'the discussion of standing at oral argument

indicates that petitioners may indeed meet minimum require-

ments for standing' "); or the court raises its own question

about the petitioner's standing and ends up having to direct

the parties to file supplemental briefs in order to ensure that

the issue is joined in a fair and thorough adversarial process,

see, e.g., Gettman v. DEA, No. 01-1182, 2002 WL 1040572 at

*2 (D.C. Cir. May 24, 2002); City of Stratford v. FAA, 285

F.3d 84, 87-88 (D.C. Cir. 2002); Ruggiero v. FCC, 278 F.3d

1323, 1327 (D.C. Cir. 2002). When, as will often be the case

henceforth, the petitioner shows in its opening brief that its

claim to standing is beyond serious question, neither the

respondent nor the court will have reason to pursue the issue

further. At the same time, a respondent that continues to

contest the petitioner's claim to standing will have the oppor-

tunity to make an informed response to the petitioner's

showing, and the petitioner then will have an opportunity to

reply to that objection in its reply brief.

In this case counsel, having been given an additional oppor-

tunity to demonstrate the Sierra Club's standing, supplied the

court with his own submission, to which were attached two

lists each of 14 mailing addresses, 33 maps, and the Declara-

tion of H.C. Clark, a Professor Emeritus at Rice University

who has "taught about geology, geophysics, and environmen-

tal problems." The submission of counsel describes the inju-

ries allegedly suffered by Sierra Club members because of

the Chlorinated Aliphatics Rule, including the claim that

members forego recreation in the vicinity of a plant generat-

ing the EDC/VCM sludge "due to their concern for expo-

sure." The allegations in this submission, however, do not

support the standing of the Sierra Club because, like the

"mere allegations" in the Sierra Club's brief, they are not

evidence. That these particular allegations concern matters

beyond the scope of counsel's personal knowledge -- the

concerns of the unidentified Sierra Club members, for exam-

ple -- serves only to illustrate why we require more than

representations of counsel in order to establish a complain-

ant's standing.

The lists attached to the submission comprise 28 street

addresses, each purportedly that of a Sierra Club member,

but there is no indication that a member resided at that

address when the Club filed the petition challenging the Rule

and resides there at present. The lists may be "evidence,"

but they are "legally insufficient" to demonstrate that at least

one member of the organization lived at the time of filing and

continues to live in a place affected by the Rule. American

Petroleum, 216 F.3d at 64.

The maps attached to the counsel's submission show that

each of the 28 listed addresses is located within five miles of

either a chemical facility in LaPorte, Texas that generates

EDC/VCM sludge or a landfill in Houston, Texas at which

sludge is disposed. The Sierra Club does not submit any

evidence, however, supporting the proposition that there is a

"substantial probability" of "actual or imminent" injury to its

members arising from their residing within five miles of the

generating or the disposal facility. American Petroleum, 216

F.3d at 63. Taken together, therefore, the address lists and

the maps do not establish the organization's standing to sue.

The affidavit of Professor Clark recounts that he has

reviewed public records maintained by the Texas Natural

Resources Conservation Commission concerning the landfill

depicted on some of the submitted maps, and that "[t]hose

records indicate that contamination in the ground water

under and from the BFI landfill has migrated into Greens

Bayou." The relevance of the just-quoted fact is not clear

from any of the evidence the Club submitted. More curious

still, Professor Clark refers generally to a "plume of contami-

nation that is moving into Greens Bayou [and] includes

petroleum related organic chemicals," but he makes no men-

tion whatsoever of EDC/VCM sludge, nor does he suggest

the current or imminent presence in the Bayou of the toxic

constituents in such sludge. Perhaps that is because the

Clark Affidavit was created for the Sierra Club to submit to

this court in a prior case unrelated to the present proceeding,

and indeed, unrelated to the Chlorinated Aliphatics Rule.

See American Petroleum, 216 F.3d at 65 ("Clark establish[es]

little more than that some types of petroleum-related organic

chemicals migrate from BFI's Houston landfill to the Greens

Bayou, and ... [t]his is insufficient to establish the environ-

mental petitioner's standing"). Recycling this affidavit does

not help to demonstrate the Sierra Club's standing to sue in

this case any more than it did in the prior case.

In sum, the Sierra Club has failed to demonstrate a sub-

stantial probability of injury to a single member; it does

nothing to explain how a member is likely to be affected by

the generation, storage, or disposal of EDC/VCM sludge as

provided under the Rule. Therefore, the Sierra Club has not

shown that it has standing to seek review of the Rule.

B. The Environmental Technology Council

We do not address the ETC's standing under Article III of

the Constitution because it is clear the Council lacks pruden-

tial standing under the RCRA. See Hazardous Waste Treat-

ment Council v. Thomas, 885 F.2d 918, 921 & n.2 (D.C. Cir.

1989) (HWTC IV); see also Galvan v. Federal Prison Indus.,

Inc., 199 F.3d 461, 463 (D.C. Cir. 1999) ("[L]ater cases make

clear what was implicit in Steel Co. [v. Citizens for a Better

Env., 523 U.S. 83, 94-95 (1998)]: There is an array of non-

merits questions that we may decide in any order"). To

demonstrate prudential standing, ordinarily a party must

show that the interest it seeks to protect is "arguably within

the zone of interests to be protected or regulated by the

statute ... in question." Ass'n of Data Processing Serv.

Orgs. v. Camp, 397 U.S. 150, 153 (1970).

The ETC, which describes itself as "a national trade associ-

ation of commercial firms that provide technologies and ser-

vices for recycling, treatment, and secure disposal of industri-

al and hazardous wastes; firms involved in the cleanup of

contaminated sites; and equipment manufacturers serving

the environmental market," makes no attempt to show that

the Congress intended the RCRA to protect interests of its

sort, either directly or as a proxy for the environmental

interests of the public for whose protection the Act was

presumably passed. In fact, the ETC does not even state,

either in its briefs or by way of affidavit, what interest it has

in this litigation. If the past is any guide, however, the

interest of the ETC is, by promoting ever more stringent

regulation, "to improve the business opportunities of treat-

ment firms" -- an end we have consistently and repeatedly

held lies outside the "zone of interests" protected by the

RCRA. HWTC IV, 885 F.2d at 925-26; accord, Cement Kiln

Recycling Ass'n v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001);

HWTC II, 861 F.2d at 285. The Council offers us no reason

to conclude that its case for prudential standing is any

stronger here.

III. Conclusion

For the foregoing reasons, the petition is dismissed.

So ordered.