holding a plaintiff failed to show an actual injury to challenge an EPA rule when the plaintiff alleged he “would not have purchased” a piece of property or “would have paid ... less” because the plaintiffs allegations showed only that the property was “worth less to him,” not that the property was “in fact worth less”
How later courts described this case
- holding a plaintiff failed to show an actual injury to challenge an EPA rule when the plaintiff alleged he “would not have purchased” a piece of property or “would have paid ... less” because the plaintiffs allegations showed only that the property was “worth less to him,” not that the property was “in fact worth less”
- holding that plaintiffs’ allegation that they would have paid less for their homes had they known that neighboring land could be converted into a bioreactor was not sufficiently “imminent” to satisfy standing because it failed to show that the fair market value of the homes had actually been affected
- finding that plaintiffs’ allegation that an environmental regulation might cause their home values to decline sometime in the future was not sufficiently “imminent” to satisfy standing
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2005 Decided November 18, 2005
No. 04-1196
GRASSROOTS RECYCLING NETWORK, INC.,
PETITIONER
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
MICHAEL O. LEAVITT, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
On Petition for Review of a Final Rule of the
Environmental Protection Agency
Kira E. Loehr argued the cause for petitioner. With her on
the briefs was Lee Cullen.
Thomas A. Lorenzen, Attorney, U.S. Department of Justice,
argued the cause for respondents. On the brief were John C.
Cruden, Assistant Attorney General, and Ammie Roseman-Orr,
Attorney.
Barry S. Shanoff and David S. Biderman were on the brief
for amicus curiae National Solid Wastes Management
Association, et al. in support of respondent.
2
Before: GINSBURG, Chief Judge, and BROWN and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Environmental Protection
Agency promulgated a rule that allows the director of an
approved state landfill permitting program to issue research,
development, and demonstration permits granting variances
from certain criteria set by the EPA for sanitary landfills. See
Research, Development, and Demonstration Permits for
Municipal Solid Waste Landfills, 69 Fed. Reg. 13,242 (Mar. 22,
2004) (RD&D Rule). GrassRoots Recycling Network, Inc.
challenges the rule as exceeding the agency’s authority under
the Resource Conservation and Recovery Act (RCRA), 42
U.S.C. § 6901 et seq. We dismiss the petition because
GrassRoots does not have standing to seek review.
I. Background
The RCRA establishes a comprehensive federal program to
regulate the handling and disposal of solid waste. As part of this
program, the statute requires the EPA to “promulgate
regulations containing criteria for determining which facilities
shall be classified as sanitary landfills and which shall be
classified as [prohibited] open dumps.” 42 U.S.C. §§
6943(a)(3), 6944(a)-(b). Under those regulations a municipal
solid waste landfill (MSWLF) must maintain a certain level of
run-on control, 40 C.F.R. § 258.26(a)(1), and “install a final
cover system that is designed to minimize infiltration and
erosion,” id. § 258.60(a).
The EPA requires most MSWLFs to be operated as “dry
tombs,” that is, with the level of liquid in the landfill minimized
in order to slow the process of biodegradation and thereby to
3
reduce the production of gas. National Emission Standards for
Hazardous Air Pollutants: Municipal Solid Waste Landfills, 67
Fed. Reg. 36,460, 36,462 (May 23, 2002). An MSWLF that
uses liquid in order to increase the rate of biodegradation is
known as a “bioreactor.” Id. The EPA prohibits the creation of
bioreactors by banning, in most instances, the addition of liquid
waste into any MSWLF. 40 C.F.R. § 258.28(a)-(b).
The States are responsible for enforcing adherence to the
EPA’s minimum criteria for landfills. The RCRA contemplates
each State will develop a “solid waste management plan[],”
subject to the approval of the EPA, 42 U.S.C. §§ 6942(b),
6947(a)-(b), which approval will not be forthcoming unless the
plan provides for closing all “open dumps,” id. § 6943(a)(3).
The RCRA also instructs the EPA to:
conduct, and encourage ... appropriate ... authorities ...
[to] promote the coordination of, research,
investigations, experiments ... and studies relating to ...
the development and application of new and improved
methods of collecting and disposing of solid waste.
Id. § 6981(a)(6). Pursuant to this instruction, the EPA issued the
RD&D Rule, hoping thereby “to stimulate the development of
new technologies and alternative operational processes for the
disposal of municipal solid waste.” RD&D Rule, 69 Fed. Reg.
at 13,243. The rule allows the director of an approved state
program to issue an RD&D permit for an MSWLF as to which
“the owner or operator proposes to utilize innovative and new
methods” of disposal. 40 C.F.R. § 258.4(a). Such a permit may
authorize the owner or operator to use a landfill design that does
not conform to the usual criteria for run-on control systems, id.
§ 258.26(a)(1); the requirements for final cover, id. §
258.60(a)(1)-(2), (b)(1); and the prohibition on adding liquids,
4
id. § 258.28(a), but only if the permit includes “terms and
conditions at least as protective as the criteria [for MSWLFs] to
assure protection of human health and the environment,” id. §
258.4(c).
GrassRoots petitions for review of the RD&D Rule, which
it claims the EPA had no authority to issue. In particular,
GrassRoots argues the EPA violated the RCRA by delegating to
the States the “authority ... to implement the [RD&D] permit
process” and “to waive certain national criteria” for sanitary
landfills.
II. Standing
Under Article III of the Constitution of the United States, an
association, such as GrassRoots,
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 participate in
the lawsuit.
Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-
43 (1977)). Because, as we conclude below, no member of
GrassRoots has standing to sue in his or her own right,
GrassRoots lacks associational standing and its petition must be
dismissed.
The “irreducible constitutional minimum of standing” has
three elements: (1) injury in fact, (2) causation, and (3)
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
5
560-61 (1992). GrassRoots bears the burdens of production and
of proof: It “must support each element of its claim to standing
by affidavit or other evidence .... Its burden of proof is to show
a substantial probability,” Sierra Club, 292 F.3d at 899, that the
RD&D Rule causes at least one of its members an injury that is
“concrete and particularized” and “actual or imminent,” not
“conjectural or hypothetical,” Defenders of Wildlife, 504 U.S. at
560.
In an attempt to meet this burden, GrassRoots attached to its
opening brief the affidavits of two members, each describing the
injuries he or she claims to have suffered as a result of the
RD&D Rule. Each member states that he or she lives
approximately 1.5 miles from a landfill in a Wisconsin town.
Wisconsin has proposed, but not adopted, a rule that would
allow it to issue permits under the RD&D Rule. See Order of
the State of Wisconsin Natural Resources Board Amending and
Creating Rules, WA-47-04, available at
http://www.dnr.state.wi.us/org/aw/wm/solid/landfill/500rev/gr
nsheet1200rule.pdf (proposing rule). Angela Petersen states: “If
I had known that the Metro Landfill [in Franklin, Wisconsin]
could be converted into a bioreactor ... I would not have
purchased my property, or I certainly would have paid
considerably less than what I paid, because of the potential
problems that can now occur.” Robin Fate similarly states he
“might not have” purchased his property had he known the
landfill near his home in Sarona, Wisconsin might become a
bioreactor.
Neither affidavit is evidence of the “actual or imminent”
injury in fact required for standing to sue. Each affiant states
that at the time of purchase his or her home would have been
worth less to him or her, not that the home in fact is worth less,
due to the RD&D Rule. In other words, GrassRoots fails to
assert, much less to offer evidence, that the fair market value of
6
any member’s home is less than it would be but for the rule.
Insofar as the affidavits could be read to suggest the rule
will cause the market value of the affiants’ homes to decline in
the future, the injury is conjectural and not imminent. See La.
Envtl. Action Network v. Browner, 87 F.3d 1379, 1383 (D.C.
Cir. 1996) (no standing where injury would not occur unless
State asked EPA to delegate authority, EPA approved state
program despite creation of allegedly unlawful regulatory gap,
and gap affected area in which plaintiff’s members lived).
Whether the Franklin or the Sarona landfill will be converted
into a bioreactor depends upon whether third parties take several
specific steps. First, the Wisconsin Department of Natural
Resources must approve the proposed (or some alternative) rule
for issuing RD&D permits. Next, the EPA must approve
Wisconsin’s proposal. See 42 U.S.C. § 6947(a). Thereafter, the
owner of the landfill must apply for a permit, and the Wisconsin
Department of Natural Resources must, after “hold[ing] a public
hearing to solicit public reaction and recommendations,” grant
“the proposed permit application.” 40 C.F.R. § 256.63(a). Even
then, the fair market value of the affiants’ homes might not
decline; recall that each RD&D permit must be as protective of
human health and the environment as would be a non-RD&D
permit. See id. § 258.4(c).
This “multi-tiered speculation,” La. Envtl. Action Network,
87 F.3d at 1383, instances events that, although by no means
impossible, are at this time neither actual nor imminent but
wholly conjectural. It is hardly surprising, therefore, that
GrassRoots has offered no evidence of an actual decline in the
fair market value of any member’s home.
III. Conclusion
In sum, because nothing in the record shows the RD&D
7
Rule has caused or is about to cause any member an injury in
fact, GrassRoots does not meet the minimum constitutional
requirements for associational standing. Its petition is,
therefore,
Dismissed.